Page images



er was not

Thirdly, of equally divided between such issue, as they attained twenty-one, the interest settlement by in the mean time to be applied towards their maintenance and education.

parentage. After her grandfather's death, Frances continued to live with her grand3. Of emancipa. mother, and was entirely supported by her until she had attained twenty

one, and was living with her at the time when the pauper hired himself to daughter was not Jeffery, and never returned to her father. The question was, if the pauper emancipated, and

gained a settlement in Tonbridge by this hiring and service. By the counsel consequently the

against the order, it was contended, that from the death of the grandfather within stat. 3 & 4 the daughter became suo jure entitled to a maintenance of her own, for such not having a child was the effect of the direction in her grandfather's will: (a) so that from that at the time of the time, which was prior to the hiring and service, she was no longer dependent hiring.

on any one for support; and the relation between the parent and child, so far as regards any dependence or support, was entirely at an end.—Lord Ellenborough, C. J. This is a perfectly new head of emancipation. The question is, if, on account of a testamentary bounty left to this child by her relation, the child shall be deemed to be emancipated from all control of the father, and the father to be discharged from all claims of the child for maintenance, if that should become necessary. If such a provision as this amounts to an emancipation, the consequence will be, that the devolution of an estate to a child, from the mother, for instance, would operate in the same way, and discharge the father from the duty of maintenance. This, then, is quite a new head of emancipation. The cases of emancipation put by Lord Kenyon, in Rer v. Witton cum Twambrookes, (post, 304,) are the child's attaining its full age, or being married, or gaining a settlement for itself; or as in the case of the sordier, contracting a relation inconsistent with the idea of his being in a subordinate situation in his father's family. Not one of these is the case here; it is a case sui generis. If, therefore, it is to be considered as an emancipation, it must be on some reason or principle. Now, the reason why it should be so considered is said to be this, that the provision made for the child secures to her an independence and maintenance, and to the parish a discharge from all probability of burthen on her account. The statute 3 W. and M. enacts, That if any unmarried person not having child or children shall be lawfully hired, &c.; which has been construed to mean,

that if he has no child that can be a burthen to the parish in consequence of his acquiring a settlement there, he shall be considered as not having a child within the meaning of the statute. But was that the case of this pauper when he hired himself? The property devised was merely in trust for the use and benefit of the grandmother, in the first instance, with a direction to her, certainly amounting in equity to an obligation to maintain the child, and after the grandmother's death to the child. But this trust might have failed; the trustees might have violated it and not paid the interest to the grandmother, or she might have proved unfaithful to her trust and refused or neglected to maintain the child; in which events so long at least as they continued, the child must have resorted to her father for maintenance, who was not discharged by any emancipation of the child, from the parental obligation of providing for her maintenance. It seems to me, therefore, under these circumstances, that the father was not in the situation of a person not having a child within the meaning of the statute; because he had a child, who would have a right to share with him, if he should be unable to provide one, a maintenance from the parish where he should have become settled, and who consequently might be a burthen to the parish. He was a person having a child, who might, in the eventual failure of the funds bequeathed for her support, claim a provision from him, and he again might have claimed to have the control and custody of her at any time. The case has certainly been ingeniously argued; but I think it does not amount to an emancipation, either to discharge the rights of the one or the duties of the other.Bayley, J. I am of the same opinion. The question is, if such a provision can be said to deprive the parent of his rights over his child, to resume to himself the care and custody of her, or can relieve him from the duty of maintaining her. If this case amounts to an

(a) See Eacles v. England, 2 l’ern. 466.


emancipation, would it not be the same, under the like circumstances, at what- Thirdly, Of ever age the child might be? For the law makes no distinction in respect settlement by of the different ages of infants under twenty-one, at which time the parental parentage. authority ceases, and the father has no right to reclaim his child. Let us,

3. Of emancipathen, put the case of an infant of very tender years, for whose maintenance the grandfather should make a provision by his will; could it be contended that such a provision would preclude the father from insisting upon having his child returned to him ? I think that could hardly be contended. But, to come nearer to the present case: suppose, after the year's service of the father, the child then being of the age of nineteen, had returned to the roof of her father, the father having then acquired a new settlement by such service, can there be a doubt that the child would have taken that settlement ? and yet, if she was once emancipated, she could not, because she would be emancipated for ever. If, then, she would have been entitled to the father's subsequent settlement, that shows that the separate provision made for her by her grandfather's will, could not operate as an emancipation; I therefore think that as she was not emancipated, but, notwithstanding the separate provision made for her, continued part of her father's family, and capable of deriving from her father any settlement which he might acquire, she was a child who might become chargeable to the parish in consequence of his acquiring a settlement. If so, it follows that the father was not in the situation of a person who is capable of acquiring a settlement by hiring and service; that is, a person not having a child within the meaning of the statute. -Holroyd, J. I concur in opinion with the rest of the Court. The maintenance provided for the child by the will was precarious, and the obligation of the father to maintain her still continued. The father's control over the child also continued; and, therefore, there is no ground upon the cases, or upon principle, to hold that the child was emancipated. I therefore think that the father was not in a situation to acquire a settlement by hiring and service. Order confirmed.

If a son continue to reside as a member of his parent's family, and unmarried, he is not emancipated, although he carry on a separate trade for imself.

Rex v. Sowerby, 2 East, 276 ; 2 Bott, 617; 1 Nol. P. L. 310. R. Murdock An unmarried son and his children were removed from St. Mary to Souerby. Order confirmed. carrying om busiCase: Richard Stokell went with a certificate from D. to Sowerby, and there but living with had a son born : R. S. died, and the son, being arrived at manhood, followed his father's widow his father's business at Sowerby, hiring servants for it, but living with his as part of her mother in a house which she hired and rented after his father's death, and thereby emancihe never left this house or his mother, except for a few weeks in harvest time pated. in one year. She had no concern with the business. The pauper was,'during this time, and ten years after the father's death, engaged by the son as his servant, and continued so for eleven years, and during that time was hired by him for a year and served the time.-The main question was, whether the son was or was not emancipated ?—Lord Ellenborough, C. J., said, that here was nothing like emancipation; that while the father was living, the son resided under his roof, and after the father's death he continued to reside with his mother, who was the representative of the father, and equally protected by the certificate: and this brought it within Rex v. Hampton.

Rex v. Halifax, Burr. S. C. 806; 2 Bott, 863; 1 Nol. P. L. 313. John A son nineteen Bragg, the father of the pauper, went with a certificate from Skircoat to years of age, Halifax, where the pauper was born. The pauper, when about fifteen years father's house as of age, bound himself apprentice by indenture to W. Smith of Halifax, for his home, and so four years, and served his master ihere for that time. After he was out of considering it, is his apprenticeship, and when he was about nineteen years of age, his father though he goes took a farm of 121. a-year in Warley, and went and resided there several years : working for him. his son, the pauper, always after the father went to Warley, worked about sell. the country as a stuff-weaver, but came to his father at Warley when he pleased, and kept his holiday clothes there, and considered his father's house as his own home: when he came to his father's house, he paid for what he had, and was his own master to go and work for himself whenever he pleased.—Lord Mansfield, C. J., was absent.— The other three judges thought that the son could not be considered as emancipated, or inde


was bound ap

and the pauper

his father's till

Thirdly, Ofpendent of or separated from his father. He went to his house when he settlement by pleased, and had his clothes there. Mr. J. Aston said, that where a son is beparentage. come independent of his father's family, or emancipated from it, he would not

acquire a settlement where his father goes to reside : but if he remains part 3. Of emancipa

of his father's family, he will acquire a derivative settlement where his father goes and settles. The distinction was well laid down, he said, in the Bugden case; and he observed that in the case of Walpole St. Peter's, the son had been four years a soldier, and was emancipated from his father's family, and had ceased to be part of it.

It must be borne in mind that in the above case the son went to Halifax with his father under a certificate, and that the 9 and 10 W. III. provides that no person whatever, who comes into a parish by a certificate, shall gain a settlement there except by renting a tenement of 10l. a year, or serving some annual office therein. The certificate not only disqualifies the certificated person from gaining a settlement for himself, but none can be derived from or gained by a service under him. Besides, a pauper cannot gain a settlement by apprenticeship in a parish into which the family, of which he continues a member, is certificated, unless the binding and inhabiting there both take place after he is twenty-one. See Rex v. Manningtree, 6 M. & S. 214.

Rex v. Morley, (post, 307.) Where a pauper

Rex v. Huggate, 2 B. & A. 582. Removal from Nunburnholme to Hug

gate. Order confirmed. Case: Thomas Lazenby, the father of the pauper, prentice to a certificated man, and was originally settled in Huggate, where his father rented a farm. During during his ap- the time that William Lazenby, the father of Thomas Lazenby, so rented prenticeship, he

the farm at Huggate, the latter was bound out apprentice till his coming of being of the age of eighteen, his age. The master, during the whole of the apprenticeship, resided at Spalfather gained a dington, under a certificate, at which place the apprentice served him until new settlement,

the expiration of the term. - About the middle of the apprenticeship, did not return to William Lazenby took another farm of 801. a year, at Storthwaite, where

he went to reside, and continued there during the remainder of his son's after Held to be not apprenticeship, and after it expired. He found his son, the apprentice, emancipated, with clothes, except shoes and aprons, during the apprenticeship. Thomas

Lazenby occasionally visited his father during that time; and on one occasion, when he was ill, went to reside with him there for a fortnight, during his illness. At the time when William Lazenby went to reside at Storthuaite, Thomas Lazenby was between eighteen and nineteen years of age, and when the apprenticeship expired, he went home for one night. The next day he went away, and went to work at various places for himself, but never gained any settlement by so doing: --After hearing counsel, Bayley, J., said, It seems to me, that Thomas Lazenby was not emancipated. He is bound apprentice to a certificated person, and consequently could not, by such service, gain any settlement. Unless he does so, his domicile continues to be his father's house, and he is liable to be removed thither at any time. If, indeed, he had withdrawn himself from his father's family after twentyone, no doubt it would be an emancipation from that period. But a sepa. ration, whilst under twenty-one, does not produce that effect, unless a subsequent settlement be gained. Here none was gained, and, therefore, his settlement shifted to Storthwaite, with that of his father.-Holroyd and Best,

Js., concurred. Order of sessions quashed. A son left his The same principle, that absence from the father's family does not emanfather's family at cipate the child if the return be before the child

is twenty-one years of age, nineteen, and served a year,

was acted upon in Rex v. Collingbourn Ducis, 4 T. R. 199; 2 Bott, 44; 1 Nol. but gaining no

P.L.312. É. Chandler and his wife were removed from Collingbourn Ducis to settlement there. Collingbourn Kingston. Order quashed. Case: E. Chandler was born in Cala

lingbourn Kingston, where his parents were residing under a certificate from twenty-one : Frox field. At the age of nineteen he was hired for a year to serve J. Childs, Held, not emancipated.

of Buckholt Farm, as a carter, which he served. Buckholt Farm is extraparochial, and has no parish officers. After the pauper had served the year at Buckholt, he returned to Collingbourn Kingston, and then being unmarried, under age, and not having done any act to gain a settlement in his own right, further than as aforesaid, was hired to, and served S. Andrews, of that parish, for a year. The sessions being of opinion that the pauper

but to follow his father's settlement.

before he was

was not emancipated, and that the certificate was not discharged so as to Thirdly, Of enable him to gain a settlement in Collingbourn Kingston, by hiring and settlement by service, quashed the order of removal.—Lord Kenyon, Č.J., (after observing parentage. upon the certificate) “In cases of this kind, where the

decisions of this Court

3. Of emancipaare to guide the judgments of the magistrates, it is of great importance that tion. they should be consistent. Now I am not able to distinguish this case from the principle laid down in Rex v. Witton cum Twambrookes. It was there held, that a person under age, who after being absent from his father's family for a considerable time, returned to it before he was an adult, or married, and before he had acquired a settlement for himself, was not emancipated, but was entitled to the benefit of his father's settlement. So in this case the son returned before he had attained the age of twenty-one, not having gained any settlement for himself distinct from that of his father, por having become the head of a family, and therefore this case must be governed by that of Witton cum Twambrookes. The distinction which has been attempted to be taken between some of the former cases and the present, that here the son put himself out to service, is not material; for until the age of twenty-one, not having done either of the acts above alluded to, he continued a part of his father's family.” Order

of sessions confirmed. Rex v. Hardwiche, 11 East, 578; 1 Nol. P. L. 314. (Among many A son was appoints in this case, one related to emancipation.) An appeal against an prenticed to a

certificated perorder for removal of J. Vipond, his wife, and children. The sessions con- son for four firmed the order, and stated, that John V., the father of Joseph, was settled years, and after in Forncett St. Mary, in Norfolk; and about forty years ago came to reside serving the time, in Hardwicke, on a tenement at 5l. 108. per annum. The pauper, Joseph, father at the age was born in that parish ; and at the age of fifteen, his father then residing Held, not emanon the said tenement, was apprenticed to S. W. of Besthorpe, and regularly cipated. served his time with his master, who resided in Besthorpe under a certificate from Bunwell. During the first year of the son's apprenticeship, John, the father, parchased the tenement on which he resided at Hardwicke for 871. During his apprenticeship he was clothed by his father, and he occasionally visited him. At the expiration of the apprenticeship, the pauper, being then nineteen years of age, returned to his father's house in Hardwicke, where he staid two days, and received some new clothes : he then went back to his former master, and engaged to work with him by the piece; and did so work at Besthorpe for a year and a quarter. The sessions were of opinion that the pauper was not emancipated by his residing in Besthorpe under the indenture, nor by any other act subsequent to it, and therefore confirmed the order,

removing him to Hardwicke. After hearing counsel, Lord Ellenborough, C. J., said, as to the point of emancipation, that the son must be considered as having been re-incorporated in his father's family, having returned, and required and received his father's assistance, and therefore he followed his father's settlement; and he said that none of the cases of emancipation, which had been decided on the ground of the children's marriage, or obtaining a settlement of their own in another parish, or being under a different control, incompatible with that of their parents, applied to this case. The other judges agreed, and the order of sessions was confirmed.

Rex v. Offchurch, 3 T. R. 114; 2 Bott, 40; 1 Nol. P. L. 311; H. West Child under age, and his wife were removed from Thurlaston to Offchurch. Order confirmed. residing away

from his father Case: The pauper was born in Offchurch in 1765, and resided there with

with relations, his father until 1770. On his father's leaving Offchurch, the pauper was who maintain left with one Leeson, at Offchurch, to be taken care of, his father paying whom he works for his lodging and board. The pauper continued at Leeson's at Offchurch without being for two years, and then went to reside with his uncle, who also lived at hired, is not

emancipated. Offchurch, and continued to reside with him about two years, during which his uncle provided him with board, clothes, lodging, and pocket-money, and he worked with his uncle, but received no wages, and was not hired as a servant. At the end of two years the pauper went to his father's at Ladbroke, and stayed there a week; and then went to reside with another uncle, Salmon of Weston, with whom he lived six years as he had done at his uncle Haddon's. His uncle Salmon provided him with board, clothes, lodg


Thirdly, of ing, and pocket-money, he working for Salmon without having been hired settlement by as a servant, or receiving any wages. On leaving his uncle Salmon, he went

parentage. and lived three weeks with his father at Ladbroke, where his father had ob3. Of emancipatained a settlement. The

pauper had never done any act to gain a settlement.—Lord Kenyon, C. J. This is the weakest case of emancipation that ever was attempted to be made out. When the father left Offchurch, the son was only five years old; now it cannot be pretended at that time he was emancipated, and yet he then ceased to reside in his father's family. Ordinarily speaking, one of these things must happen before the son can be said to be emancipated : either he must have obtained a settlement for himself, or have become the head of a family, or at most he must have arrived at that age when he may set up in the world for himself. But here the son does not fall within either of those descriptions: no time can be stated when the emancipation may be said to have commenced. For when he went to live with his uncle Haddon, he was only eight years old at the most; and he could gain no settlement either by living with that uncle, or his other uncle Salmon as a servant, because the case states that he was not hired as a servant by either of them. Now during all this time the father had a right to the custody of the son, and might have obtained him by habeas corpus,

the parental care was not then done away. It is not necessary in these cases of derivative settlements, that the child should remove with the father from place to place, for the settlement of the father will be communicated to the child: otherwise children who are sent out into the world for education, and are of course separated for a time from the father, might lose the benefit of their father's settlement; and when they were about to return home, would find themselves excluded from parental care, if their parents had in the mean time gained a new settlement. How long the power of communicating a derivative settlement may continue, it is not necessary to determine; for in this case it certainly remained longer than till the child was nine or ten years old, and that is sufficient for the determination of this

question. Both orders quashed. A child is not Rex v. Witton cum Twambrookes, 3 T. R. 355 ; 1 Nol. P. L. 292, 309. G. emancipated till

Hewitt and his wife and family, were removed from Stockport to Witton he has gained a settlement in his cum Twambrookes. Order confirmed. Case: The pauper's father, J. Hewitt, own right, or has rented a tenement of 161. a-year in Witton, &c., and resided upon it above tion inconsistent

a year, when the pauper was about six years old. The father then went to with the idea of Middlewich, where he did no act to gain a settlement; and about two years his being part of after ran away from his family; and the pauper's mother, taking the pauper his father's family; and a with her to Congleton, died in half a year: the pauper was there left in the person at the

age care of one Jane Brookes, with whom he lived at Congleton, and worked at of nineteen (his father haviogrun

the silk mills there. And the overseers of Witton, &c., paid the whole or a away), hiring part of his maintenance for four years to Jane Brookes, after which the pauhimself for four per supported himself to the age of sixteen, at which time he got 3s. 9d. per years, but not gaining a settle

week and boarded himself where he liked. During the first part of the time ment thereby, is he lived at Congleton, he saw his father twice, at the distance of about four not emancipated.

years, at which time his father did not give him any thing (except a pair of breeches, and 2 d. the first, and 1 d. in money the second time). At eighteen or nineteen years of age, the pauper went from Congleton to Sheffield, and hired himself for four years, but gained no settlement thereby. He heard that his father had been to enquire after him at Congleton, and that he then lived at Dunham, to which place he went to see him, and was at that time twenty-three years of age, and married. It appeared that the father had made the above enquiry of his daughter, the pauper's sister, with intent, as he said, to give him a suit of clothes, as he had done less for him than any of his other children. It appeared that the father had married a second wife, and held a tenement in Dunham of Ul. a-year; and he had lived upon it eight years when his son went to see him there as above, upon which visit he staid only one hour, and never saw his father but as above.-Lord Kenyon, C.J., said, it was never conceived in any case, that a son who was only sixteen years of age, and who had not gained any settlement in his own right, was not part of his father's family. The cases of emancipation have always been decided on the circumstances either of the son's being twenty-one, (Rex v. Roach, post, 305)

contracted a rela.

« PreviousContinue »