that "the pauper ceased to be part of his father's family, upon his marrying and living separate and distinct from his father." Thirdly, Of settlement by parentage. The like determination was made in R. v. Heath, 5 T. R. 583; 2 Bott, 614; 1 Nol. P. L. 316. Which was a question of settlement by certi- 3. Of emancipaficate; it appeared that the son of the certificated person married, and lived tion. separately from his father, and it was adjudged that such a person ceased Marriage and seto be part of his father's family, when he married and lived separate from paration from the his father; and R. v. Mortlake, 2 Bott, 766; 1 Nol. P. L. 310; is to the same effect. R. v. Walpole St. Peter's, Burr. S. C. 638; 1 Bla. Rep. 669; 2 Bott, 35; 1 Nol. P. L. 317. The pauper being settled at Outwell as part of his father's family, enlisted for a soldier, and continued in the service four years; after his discharge, he came home to his father, who had removed from Outwell, and then lived at Walpole, and rented and occupied a farm there of about 50l. a year, and continued there with his father about twelve or fourteen weeks; and afterwards worked at different places as a labourer, till he was removed by an order from Wisbech to Walpole. He had never gained any settlement of his own. The sessions confirmed the order. It was moved to quash both these orders, for that the pauper's settlement was at Outwell; which was the place of his father's settlement at the time of the pauper's leaving his father's family, and consequently the pauper's own derivative settlement. The son, by enlisting for a soldier, and continuing four years in the service, became emancipated from his father's family; and not having gained any subsequent settlement for himself, must resort to his old derivative settlement at Outwell; and could not, after such an emancipation from his father's family, gain a settlement at Walpole St. Peter's, where his father had newly and subsequently gained a settlement, but had none there when the son left him and ceased to be part of his family. And a rule was made to shew cause. Which rule was made absolute, without defence. And both the orders were quashed. It is to be observed, that whether the pauper was under age or not at the time of the enlistment, or the discharge, does not appear, the above case therefore is of very little authority for want of this material fact being stated. It is clear from more recent decisions, that if the return to the father's family be while the son is still a minor, the emancipation is not complete. See Rex v. Rotherfield Greys, post, 297, and Rex v. Whitehaven, ante, 278. In the following case it is clear, though not stated in express terms, that the pauper did not return to England till after he was of fulf age, and he was still a soldier. Rex v. Stanwix, 5 T. R. 670; 2 Bott, 45; 1 Nol. P. L. 317. Jane and Isabella Campbell, both widows, and the five children of Isabella, were removed from St. Mary's, Carlisle, to Stanwix. The sessions confirmed the order. Case: Jane (since dead) was the widow of A. Campbell, a Scotchman: Isabella is the widow of W. Campbell, who was the legitimate son of Alexander and Jane; and the five children are the legitimate children of William and Isabella. Alexander became seised of a messuage and tenement in Stanwix by descent, upon which he resided upwards of a year, about the years 1774 and 1775. Some time before, and until the premises in Stanwix descended to Alexander, he resided in Scotland, where William, about nineteen years of age, enlisted and left his father's family in Scotland, which was some years before the above premises descended to his father. William, after having been for some time beyond the seas as a soldier, returned to England, (his father being then dead,) and married the pauper Isabella at Plymouth, and went beyond sea again as a soldier, and at the end of two years returned again to England; and he came to Rickergate quarter, adjoining to Stanwix, where he lived six years, and then removed into St. Mary's, where he lived four years, but never acquired any settlement by any act of his own. Alexander sold part of the estate in Stanwix in his life-time, and resided upon the residue, consisting of a house and garden of the yearly value of 21. 5s. till his death, which premises he devised to Jane his wife for life, and after her death to William his son, his heirs and assigns (a) But see how this doctrine is limited and explained by the subsequent cases. parent. A son enlisted for soldier, and was and then returned to his father: Held to be emancipat absent four years, ed. Where the son enlists as a sol under the control Thirdly, Of settlement by parentage. 3. Of emancipation. last lived to gether, while the father gained a settlement there. A son at nine churchwarden and other parish offices, and staid till 1716: that in 1716 he purchased a cottage of 17. 12s. 6d. a year in Eastwoodhay, and went and lived upon it till his death; but Robert his son, the pauper, staid behind in Westwoodhay, where he married, and had worked ever since on his own account. It was moved to quash the order of sessions, confirming the order he and his father of removal, for that the settlement of Robert the pauper was either at Hampstead Marshall, where he was born, and where he lived till he was eight years old; or if it should be held that he gained a new settlement with the father, by removing with him as part of his family, yet they could carry him no farther than Westwoodhay, which is the last place to which he accompanied his father. On the other hand it was insisted, that let the son be of what age he will, he shall follow the settlement of his father, till he gain one by his own acquisition; and it appeared he had never done any thing to gain a settlement by any act of his own, either in Hampstead Marshall, Chevely, or Westwoodhay.-Pratt, C. J. The question is not, where this man and his family are settled, but whether there appears a settlement of him in Eastwoodhay? If he had gone thither with his father, as part of the family, possibly it might have been a settlement of him there: but by staying behind, he was divided from his father, and therefore there is no colour to make it a settlement in Eastwoodhay. I think his settlement is in Westwoodhay, which was the last place where he lived as part of his father's family. To which the rest of the Court agreed: and the order was quashed. St. Michael's Coslany in Norwich v. St. Matthew's in Ipswich, 2 SessC. 129; 2 Stra. 831; 2 Bott, 32; 1 Nol. P. L. 317. E. Williams, Anne his wife, and E., S., and A., children of the said E., the father, were removed from St. Michael, in Norwich, to St. Matthew in Ipswich. Case: Edmund Williams, the grandfather, was settled at Shepton Mallet, and afterwards removed to Bruton, and had a writing given him from Shepton Mallet, acknowledging his settlement to be there; by virtue of which he continued at Bruton for twenty years, where Edmund the son was born; he continued there with his father till he was nineteen years of age, and was bred up to his father's business of a woolcomber. Then E. the son left his father, and came to Norwich, and there he married two wives; by the first he had E. the grandson; and ten years after his wife died. Then he married Anne, his now wife, by whom he had S. and A., two other children; since whose birth, about two years ago, E. Williams, the grandfather, gained a new settlement at St. Matthew's, Ipswich: but Edmund the son hath never lived with his father at Ipswich, or any where else, since he lived with him at Bruton.—Mr. J. Reynolds: I do not see how the father can gain a settlement for the son, so many years after the son has left him.-Lord Raymond, C. J.: I think it is odd, that an old man of sixty, who has left his father for forty years, shall follow the settlement of his father as often as his father removes. In the case of young children it is otherwise; for they cannot be severed from their parents because of nurture.-And per Cur. The reason why we enquire into the ages of children is, because if they are grown up, and above seven years old, they may gain a settlement by their own act: but it is almost a contradiction in terms to say, that a man, who has left his father forty years, shall follow the settlement of his father. teen, leaving his father and going parish and mar into another rying, is emanci pated, and his children can de rive no settlement from their grand father. Marriage, and living separate from the father, amounts to emancipation. Bugden v. Ampthill, Burr. S. C. 270; 2 Bott, 60; 1 Nol. P. L. 310. J. G., the father of T. G., the pauper, came by certificate from R. to A. They remained together at A., under the certificate, till T. G. the pauper, came of age. After which T. G., the pauper, married in A., and left his father, and lived there with his wife and children, distinct from his father, till removed by this order. Three years after the marriage of T. G., the father removed from A. to B. and there gained a settlement, but neither T. G. the pauper, nor his wife, nor any of his children, ever lived there. It was argued that the last settlement of J. G. the father, would be the legal settlement of the son, unless the son had gained a new settlement of his own. Upon the other side, it was said, that as the son did not live with his father at B. he could not gain a settlement there, being no part of his family; and the rather, because he had an independent and distinct family of his own at another place. And of that opinion was the Court, who held that "the pauper ceased to be part of his father's family, upon his marrying and living separate and distinct from his father." Thirdly, of settlement by parentage. The like determination was made in R. v. Heath, 5 T. R. 583; 2 Bott, 614; 1 Nol. P. L. 316. Which was a question of settlement by certi- 3. Of emancipaficate; it appeared that the son of the certificated person married, and lived tion. separately from his father, and it was adjudged that such a person ceased Marriage and seto be part of his father's family, when he married and lived separate from paration from the his father; and R. v. Mortlake, 2 Bott, 766; 1 Nol. P. L. 310; is to the same effect. R. v. Walpole St. Peter's, Burr. S. C. 638; 1 Bla. Rep. 669; 2 Bott, 35; 1 Nol. P. L. 317. The pauper being settled at Outwell as part of his father's family, enlisted for a soldier, and continued in the service four years; after his discharge, he came home to his father, who had removed from Outwell, and then lived at Walpole, and rented and occupied a farm there of about 50l. a year, and continued there with his father about twelve or fourteen weeks; and afterwards worked at different places as a labourer, till he was removed by an order from Wisbech to Walpole. He had never gained any settlement of his own. The sessions confirmed the order. It was moved to quash both these orders, for that the pauper's settlement was at Outwell; which was the place of his father's settlement at the time of the pauper's leaving his father's family, and consequently the pauper's own derivative settlement. The son, by enlisting for a soldier, and continuing four years in the service, became emancipated from his father's family; and not having gained any subsequent settlement for himself, must resort to his old derivative settlement at Outwell; and could not, after such an emancipation from his father's family, gain a settlement at Walpole St. Peter's, where his father had newly and subsequently gained a settlement, but had none there when the son left him and ceased to be part of his family. And a rule was made to shew cause. Which rule was made absolute, without defence. And both the orders were quashed. It is to be observed, that whether the pauper was under age or not at the time of the enlistment, or the discharge, does not appear, the above case therefore is of very little authority for want of this material fact being stated. It is clear from more recent decisions, that if the return to the father's family be while the son is still a minor, the emancipation is not complete. See Rex v. Rotherfield Greys, post, 297, and Rex v. Whitehaven, ante, 278. In the following case it is clear, though not stated in express terms, that the pauper did not return to England till after he was of full age, and he was still a soldier. Rex v. Stanwix, 5 T. R. 670; 2 Bott, 45; Ï Ñol. P. L. 317. June and Isabella Campbell, both widows, and the five children of Isabella, were removed from St. Mary's, Carlisle, to Stanwix. The sessions confirmed the order. Case: Jane (since dead) was the widow of A. Campbell, a Scotchman: Isabella is the widow of W. Campbell, who was the legitimate son of Alexander and Jane; and the five children are the legitimate children of William and Isabella. Alexander became seised of a messuage and tenement in Stanwix by descent, upon which he resided upwards of a year, about the years 1774 and 1775. Some time before, and until the premises in Stanwix descended to Alexander, he resided in Scotland, where William, about nineteen years of age, enlisted and left his father's family in Scotland, which was some years before the above premises descended to his father. William, after having been for some time beyond the seas as a soldier, returned to England, (his father being then dead,) and married the pauper Isabella at Plymouth, and went beyond sea again as a soldier, and at the end of two years returned again to England; and he came to Rickergate quarter, adjoining to Stanwix, where he lived six years, and then removed into St. Mary's, where he lived four years, but never acquired any settlement by any act of his own. Alexander sold part of the estate in Stanwix in his life-time, and resided upon the residue, consisting of a house and garden of the yearly value of 21. 5s. till his death, which premises he devised to Jane his wife for life, and after her death to William his son, his heirs and assigns (a) But see how this doctrine is limited and explained by the subsequent cases. VOL. IV. U parent. A son enlisted for a soldier, and was absent four years, and then returned to his father: Held to be emancipat ed. Where the son enlists as a sol under the control Thirdly, Of settlement by parentage. 3. Of emancipation. Serving in the militia is not, of itself, an emanci pation, although he continues after twenty-one. A pauper, when eighteen years of age, and residing with his father, for ever. Rex v. Woburn, 8 T. R. 479; 2 Bott, 50; 1 Nol. P. L. 315, 318. J. Williams, the father of T. Williams, the pauper, previous to 1756 was settled with his family at Leighton Buzzard. The pauper was born in that parish and baptized there in 1756. In 1763 J. W., with his family (including T. W.) removed to Woburn, and gained a settlement there, in 1774. In 1772, previous to such settlement, the pauper entered into the militia with the consent of his father, then a serjeant in the same militia; the pauper continued therein a drummer till he was twenty-three years of age: during which time his pay was received by his father. From the time of the pauper's entering into the militia, until the year (1788), when he married, he lived in his father's family, except at the times when he and his father were absent upon duty in the militia. He was removed from L. B. to Woburn, and the sessions affirmed the order.-Per Ld. Kenyon, C. J. The argument that has been used in support of the present rule, if it proves any thing, proves too much; for it tends to shew that if a child be for any period of time, however short, under any other control than that of the father, he is thereby emancipated from his father's family. That is the case of every private in the militia, even in time of peace; he is subject to military control during a part of the year, and therefore not under the father's control during that time; and yet it was contended that such a person is by that means emancipated. A drummer is generally taken at a very early period of life, and if he only continue in that situation for twenty-four hours, he is, it is said, emancipated from his father. The proposition is monstrous. In Rex v. Walpole St. Peter's, the Court proceeded on this ground, that he was engaged to serve for life, and was liable to be sent into foreign countries. But a son is not emancipated by the circumstance of his being under some other control than that of his father. As in Rex. v. Halifax, I am, therefore, of opinion that this pauper was not emancipated from his father at the time when the latter gained a settlement at W.-Grose, J. Of the same opinion, as it appeared that he was only sixteen years of age when he entered; that he did so with his father's consent, a serjeant in the same militia; that his father received his pay: and that till he married he lived in his father's family.-Le Blanc, J., said, that in Rex. v. Walpole St. Peter's, the son was totally independent of his father for four years. It will be observed, that in the above case, the pauper remained with the father's family, during the whole period when he was on duty as a militiaman, and then when he was on duty he was still in some sense under the parental control, the father being in the same service and receiving his pay. In the following case these facts did not exist, and this seems to be the ground of distinction between the two cases. Rex. v. Hardwick, 5 B. & A. 176. Removal from Stanton Harcourt to Hardwick. Order confirmed, subject to the following case :-The pauper was born in Hardwick, and resided there as a part of the family of his father, (a) At which time it appears by the facts that the son was of full age and a soldier. who was settled there. In 1807, when the pauper was eighteen years of age, he was drawn for the militia, and served therein for five years as a ballotted man; the regiment, during the whole of that period, being embodied and in actual service. He joined the regiment in 1808, and in 1809, having obtained a furlough for three weeks, he returned to the house of his father, who was still residing at Hardwick, and lived with him for about a fortnight. In 1811, the pauper obtained a second furlough for a fortnight, and went again to his father's, who was then residing in Stanton Harcourt, where he remained for about twelve days. The pauper was discharged from the militia in 1813, when he returned to his father in Stanton Harcourt, who gave him lodgings in his house till his marriage. After the pauper's return from the militia, and before his marriage, his father gained a settlement in Stanton Harcourt.-After hearing counsel, Abbott, C. J., said, the rule of law is, that every new settlement acquired by the parent, is communicated to the children so long as they remain members of his family; and the question in this case is, whether at the time when the father gained his settlement in Stanton Harcourt, this pauper remained a member of his family. Now, during the minority of the child, he will remain almost under any circumstances unemancipated; but where the new settlement is acquired by the parent after the child has attained twenty-one, it will not be communicated unless in fact the child continues part of the family. Where, therefore, at that period he is absent, employed in gaining a livelihood for himself, or serving, as in this case, in the militia, I think he no longer remains a member of the family. In the present case, I think that the sessions have come to a right conclusion, in deciding that the legal settlement of the pauper was at Hardwick.-Bayley, J. If a child be separated from his father's family, and does not return till after twenty-one, he ceases to be a member of that family, and consequently his settlement will not, after twenty-one, shift with that of his father. I think, therefore, that the sessions are right, and that this case is hardly distinguishable from Rex. v. Walpole St. Peter's.-Holroyd, J. The distinction between a compulsory and a voluntary separation, seems to me to be immaterial. The case must follow the same rule as Rex. v. Walpole St. Peter's. Order of sessions confirmed. into the marines, was discharged from that service, and returned to family before he attained the age his father's of twenty-one : Held, that he was not emancipated. Rex v. Rotherfield Greys, 1 B. & C. 345 ; 2 D. & R. 268. Thomas Binfield A minor, enlisted was removed from Tooting Graveney to Rotherfield Greys. Order confirmed. Case: In 1807, the pauper's father removed with his wife and family, including the pauper, to Tooting Graveney, and took a cottage there, which he has held ever since, at 3s. per week. The pauper resided at Tooting Graveney with his parents till 1813, when he enlisted in the marines, and went abroad in that service. He remained in the marines till the 8th September, 1815, when, in consequence of the reduction of that corps, he received his discharge, and returned the same day to his parents at Tooting, being then under the age of twenty-one years, and resided with them from that time until some time after his father hired a stable in Streatham. About a year after the pauper's return home, the pauper being then more than twenty-one years of age, his father hired a stable, in Streatham, at 4s. a week, which he held for about nine months, still continuing to reside at the cottage at Tooting Graveney. The cottage and the stable together were above the annual value of 101. The pauper had never done any act to acquire a settlement for himself. After argument.-Bayley, J. I am of opinion that the pauper was not emancipated. In order to constitute emancipation, the party ought to be wholly and permanently free from the parental control. In this case, the pauper, by enlisting into the marines, became subject to the control of the crown, and continued subject to that control as long as the period of his service continued; and if he had remained in the army till the age of 21 years, his emancipation would undoubtedly relate back to the time of his enlistment: but before he attained the age of 21 years, the relation between him and the crown ceased, and he returned to and constituted part of his father's family, and of course again became subject to the parental control. He, therefore, was not emancipated. This is consistent with the opinion of Lord Kenyon, C. J., and Lawrence, J., in R. v. Roach, (6 T. R. 247,) and is consistent with the general rule laid down by the present |