Thirdly, Of settlement by parentage. 3. Of emancipation. If a child gain a Residence of a child by his father's direction at Lord Chief Justice, in Rex v. Wilmington. In the late case of Rex v. Hardwick, (ante, 296,) the Lord Chief Justice says, "that during the minority of a 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 years of age, it will not be cominunicated, unless in fact the child continues part of the family. When, therefore, at that period, he is absent, employed in getting a living for himself, or serving in the militia, he no longer remains a member of the family." In this case, the pauper was, at the period when he attained to the age of twenty-one years, living with his father, and constituting a part of his family. He was, therefore, not emancipated, and he acquires his father's settlement in Tooting Graveney, and the order of sessions must be quashed.-Holroyd, J. By entering into the marines, the pauper ceased to be under the control of his father, and became subject to the control of the crown, as long as that state of circumstances continued. But before he attained the age of twenty-one, he ceased also to be under the control of the crown, returned to his father's family, and again became subject to his control, and, consequently, was not emancipated. It has been said, that this, being an engagement for life, constitutes in itself a complete and perfect emancipation. It was an engagement for life, so as to bind the pauper to serve for life, if required; but the duration of the service depends on the discretion of the crown.-Best, J. By the general policy of the law of England, the parental authority continues until the child attains the age of 21 years: but the same policy also requires, that a minor shall be at liberty to contract an engagement to serve the state. When such an engagement is contracted, it becomes inconsistent with the duty which he owes to the public, that the parental authority should continue. The parental authority, however, is suspended, but not destroyed. When the reason for its suspension ceases, the parental authority returns. Order of sessions quashed. Rex v. Bleasby, 3 B. & A. 377. Removal from Bleasby to Thurgarton. Order discharged. Case: The pauper was born at Gonalstone, the place of his father's settlement, in June, 1785; and at thirteen years of age was hired and served for a year with J. Hind, of Gonalstone. When the pauper was about sixteen years of age, his father gained a settlement in Thurgarton by renting a tenement of the yearly value of 10l., on which the father continued to reside during the remainder of the pauper's minority, and the pauper continued during such period (that is, from about two years after the expiration of his service in Gonalstone, until he was twenty-one years of age,) to reside in his father's house at Thurgarton, working during the time as a journeyman frame work-knitter, and occasionally paying part of his earnings to his father, who was a labourer, as a compensation for his board.-Abbott, C. J. I take it to be settled law, that if a child acquire a settlement of his own, although he may afterwards, during his minority, return and live with his father's family, he does not follow the settlement of his father subsequently obtained. In this case the pauper did acquire a settlement by the hiring and service in Gonalstone, and after that time he derived his settlement no longer from his father, but from the contract of hiring.—Bayley, J. It has long been settled that the settlement of a child, who has acquired one of his own, does not shift with that of the father. It is said that the pauper has not gained a settlement of his own in Gonalstone, because he had one there before; but the words of 3 W. & M. expressly provide, that if an unmarried person shall so be hired and serve, he shall be judged and deemed to have a good settlement. The order of sessions must, therefore, be confirmed.—Holroyd, J. I can see no reason why a party should not gain a new settlement in the parish in which he had one before, where originally he had it in another right, as derived from his father, and subsequently in his own right, under the contract of hiring and service. Order confirmed. If provision be made for a child under age, and independently of the parents, and the child lives away from the father's family, so that he exercises no superintendence or immediate actual control over the child, still this will not amount to an emancipation as is established by the following cases. Rex v. Tottington Lower End, Cald. 284; 2 Bott, 64; 1 Nol. P. L. 311. E. Holt, wife and family, were removed from Broughton to Tottington Lower End, Lancashire. Order confirmed. The pauper was the son of T. Holt, who at the time of the pauper's birth was settled in Tottington Lower End. When he was seven years old his mother died, and he and his father went to live with his uncle in Pilkington; his father boarded; but his uncle, out of charity to his father, who had four other children, and to keep him off the town, took the pauper and provided for him, meat, drink, lodging, and clothes; in about eighteen months his father went to reside in the adjoining township of Ratcliffe, but the pauper continued with his uncle till he was ten years old, about which time his uncle's wife beat him (his uncle being from home), and he went to his father's house and stayed there about a fortnight: but his father not having a loom to accommodate him as a weaver, desired him to return to his uncle, which he did, and his uncle taught him to weave in the day, and sent him to school in the evenings; his uncle provided him with meat and clothing, and received the money he earned; he stayed with his uncle on these terms until he was sixteen years old; but from his first going to his uncle to that time, he now and then went to see his father at a holiday time or so, and sometimes stayed all night. When he was fourteen years old, his father came into Pilkington, and gained a new settlement there by renting 151. a-year. The pauper considered his father's house as his proper home, because he was his father; and that he could have gone to him when he pleased, and his father would have received him. The father thought himself obliged to provide for the pauper whenever the uncle turned him away; and when he was sixteen years of age, having been struck by his uncle, he told him he would leave him and return home to his father; his uncle said he might; upon which he went to his father and told him the circumstances. The father said he was liable to take him in, and did receive him as part of his family; he stayed with his father about a week, and helped him to get his hay; and when that was done, his father, not having a loom, desired him to return to his uncle, and see if he would take him in. He did return, and agreed with his uncle to work for himself, and pay for his board; and it did not appear to the sessions he ever returned to his father. Some time after his last return to his uncle, having taken 2s. 6d. or more of him, his father gave his uncle 2s. 6d. as amends for the same. The pauper had gained no settlement in his own right. The father says, if the uncle had gone to live a great distance from him, he would not have suffered the pauper to have gone with him.-Lord Mansfield, C. J. The pauper considered himself as part of his father's family, and the father considered him the same. When a man acquires a settlement, he acquires it for himself and his family. There is no reason to say this boy was not a part of his father's family. The uncle was under no obligation to do any thing for him, or to keep him an hour: and the boy, in point of fact, on every disagreement went to his father's house as his home, and he received him, as he was bound to do. I see no ground for considering this as an emancipation. Thirdly, Of settlement by parentage. 3. Of emancipation. a friend's house for support, the father's house" occasionally as his home, is not child visiting his au emancipation at the time of Where pauper, eighteen, who, death, and after Rex v. Uckfield, 5 M. & S. 214. The sessions confirmed an order for the removal of J. Marshall from Hurstperpoint to Uckfield. Case: The pauper, being settled in Uckfield, on the 10th of April, 1802, was hired and served for a year to Jeffery, residing in Tonbridge. The pauper was a widower at the time of this hiring, and had one daughter, Frances, eighteen years of age, who had been separated from him at the age of four years, and had lived with her grandfather until his death in 1801, during which time she was entirely supported by the grandfather, the pauper contributing nothing for her maintenance. The grandfather by his will devised the residue of his estate (which amounted to 16007.) to his executors in trust, to place the same out upon security, and pay the interest to his wife for life for her own use; and he directed that his wife should, during her life, thereout educate and maintain Elizabeth and Frances, the children of his late daughter Elizabeth Marshall, and after the decease of his wife he gave the residue equally to be divided between the said Elizabeth and Frances; but in case his wife should die before they attained twenty-one, the interest was to be applied to their mainte- of a fund given to nance and education during their minority, and upon their attaining twenty- the grandmother one respectively, the principal to be paid to them; and if either of them her decease to should die under age and without leaving issue, her share to go to the sur- the daughter: vivor; but if either should die under age leaving issue, her share to beeld, that the maintain her out for life, and after Thirdly, Of settlement by parentage. 3. Of emancipation. daughter was not emancipated, and consequently the pauper was not within stat. 3 & 4 not having a child at the time of the hiring. W. & M. a person equally divided between such issue, as they attained twenty-one, the interest in the mean time to be applied towards their maintenance and education. After her grandfather's death, Frances continued to live with her grandmother, and was entirely supported by her until she had attained twentyone, and was living with her at the time when the pauper hired himself to Jeffery, and never returned to her father. The question was, if the pauper gained a settlement in Tonbridge by this hiring and service. By the counsel against the order, it was contended, that from the death of the grandfather the daughter became suo jure entitled to a maintenance of her own, for such was the effect of the direction in her grandfather's will: (a) so that from that time, which was prior to the hiring and service, she was no longer dependent 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 Rex 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 soldier, 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 Vern. 466. Thirdly, Of settlement by parentage. 3. Of emancipa emancipation, would it not be the same, under the like circumstances, at what- 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 himself. Rex v. Sowerby, 2 East, 276; 2 Bott, 617; 1 Nol. P. L. 310. R. Murdock and his children were removed from St. Mary to Sowerby. Order confirmed. Case: Richard Stokell went with a certificate from D. to Sowerby, and there had a son born: R. S. died, and the son, being arrived at manhood, followed his father's business at Sowerby, hiring servants for it, but living with his mother in a house which she hired and rented after his father's death, and he never left this house or his mother, except for a few weeks in harvest time 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 Bragg, the father of the pauper, went with a certificate from Skircoat to Halifax, where the pauper was born. The pauper, when about fifteen years of age, bound himself apprentice by indenture to W. Smith of Halifax, for four years, and served his master there for that time. After he was out of his apprenticeship, and when he was about nineteen years of age, his father took a farm of 121. a-year in Warley, and went and resided there several years: his son, the pauper, always after the father went to Warley, worked about 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 An unmarried son carrying on busibut living with his father's widow as part of her family, is not thereby emancipated. ness for himself, A son nineteen years of age, treating his father's house as his home, and so considering it, is not emancipated, though he goes working for him. self. about the country Thirdly, of settlement by parentage. 3. Of emancipation. Where a pauper was bound ap prentice to a cer during his apprenticeship, he being of the age of eighteen, his father gained a new settlement, and the pauper his father's till after twenty-one: Held to be not emancipated, but to follow his father's settlement. pendent of or separated from his father. He went to his house when he pleased, and had his clothes there. Mr. J. Aston said, that where a son is become 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 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.) Rex v. Huggate, 2 B. & A. 582. Removal from Nunburnholme to Huggate. Order confirmed. Case: Thomas Lazenby, the father of the pauper, tificated man, and was originally settled in Huggate, where his father rented a farm. During the time that William Lazenby, the father of Thomas Lazenby, so rented the farm at Huggate, the latter was bound out apprentice till his coming of age. The master, during the whole of the apprenticeship, resided at Spaldington, under a certificate, at which place the apprentice served him until 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 apprenticeship, and after it expired. He found his son, the apprentice, 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 Storthwaite, 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 nineteen, and served a year, but gaining no settlement there by, he returned before he was twenty-one : 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, was acted upon in Rex v. Collingbourn Ducis, 4 T. R. 199; 2 Bott, 44; 1 Nol. P.L.312. E. Chandler and his wife were removed from Collingbourn Ducis to Collingbourn Kingston. Order quashed. Case: E. Chandler was born in Collingbourn Kingston, where his parents were residing under a certificate from Froxfield. At the age of nineteen he was hired for a year to serve J. Childs, 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 Held, not emancipated. |