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tion.

in the certified

Thirdly, Of Lord Ellenborough, C. J., after observing on the effect of the certificate settlement by said, that brings it to the question, whether he was a part of his father's

parentage. family. In the case of Collingbourn Ducis the pauper, after leaving 3. Of emancipa

his father's family, returned to the parish where his father was living

under the certificate, being under age, and was hired in the certified same person for a parish, at which time he continued a part of his father's family. So, in year, and served Rex v. Keel, the pauper returned to a branch of her family

in the certified successive years parish, and was there hired and served whilst under age. Rex v. Ingworth

is the nearest to the present case; but there is this distinction, that there parish : Held, that he gained a set.

the pauper returned under age to the father's house, and hired himself tlement by such whilst under age to a person in the same parish; and although by comhiring and ser

paring his age when he first let himself, with the time when he last let vice.

himself, it does appear that he must have been of age at the commencement of the second year's service under the last letting, yet that circumstance seems to have escaped the notice both of the counsel and the court; and the case was decided entirely on the authority of Rex v. Keel, which it was supposed exactly to resemble; but which, for the above reason, is not so. We do not think, however, that this is an authority to warrant us in deciding that where a child, not named in the certificate, separates himself from his father's family at an age when he is by law capable of supporting himself, he shall either derive a settlement acquired subsequently by his father, or shall be prevented by the certificate from gaining a settlement for himself, which is a disability that can only attach on him as being one of the family. This is illustrated by Rex v. Roach, where a daughter, being of age, left her father's family, and hired herself to a farmer for eight weeks; during the time of her absence her father acquired a subsequent settlement, and it was determined that she was not entitled to such subsequent settlement, on the ground that she had ceased to be a part of the father's family, or in the language of the cases, was emancipated. That case was fully argued and considered, and it lays down a rule in precise terms, which may serve to govern others in future. The same point was determined in Rex v. Cowhoneyborne. That was the case where the daughter, being under age, went to reside with her uncle, with her father's consent, and was maintained wholly by him, and continued with him till she was of the age of twenty-seven; and the Court held that she ceased on her coming of age to be a part of her father's family, although she had not acquired any distinct settlement for herself, and therefore the father acquired a settlement by hiring and service, as an unmarried man, not having a child within the words of the statute. It is true that these latter were cases where the question did not arise upon a certificate; but they establish a principle which shews what it is that constitutes a child a part of his father's family; and whatever divests him of the capacity as one of his father's family in the one case, divests him of the incapacity in the other. We are of opinion, therefore, that the pauper ceased to be a part of his father's family, and by the

hiring and service gained a settlement in Armley. Orders quashed. (a) Where a pauper

Rex v. Lawford, 8 B.& C.271; 2 M. $. R. 556. H. Nunn and her children left his father's

were removed from Lawford to St. Anne's, Limehouse. Order quashed; family at fifteen, and entered the subject to a case. J. Nunn, the late husband of the pauper, Hannah Nunn, sea service,

in 1802, when about fifteen years of age, quitted his parents, and went to where he remained till twenty

sea, where he continued till the period of his marriage, sometimes serving one: Held, that on board a king's cutter, and at other times on board different trading vessels, emancipated, and gaining his own living. Up to the age of eighteen, his parents resided at was settled in the Manningtree, and while there, the vessel on board of which their son was parish where his serving being stationed on the river near that town, the mother washed for

him, and occasional visits were paid by the son to the parents, sometimes of a few days' continuance. During the period from 1805 to 1810, the parents,

he was then

settled.

(a) Note. If the pauper is still one of inhabiting take place after his emancithe family, he cannot acquire a settle- pation. Rex v. Manningtree, 6 M. & S. ment in the certificated parish by appren- 214, post, (See title. Apprenticeship.) ticeship, unless both the binding and

having quitted Manningtree, removed to St. Anne's, Limehouse, and resided Thirdly, of on a tenement of the value of twelve guineas a-year; and twice during

settlement by those five years the son visited them there, and stayed eight or ten days at parentage. a time, returning to his ship after each visit

. The distance prevented the

3. Of emancipamother from continuing to wash for the son, while she and her husband tion. were resident at St. Anne's; but she occasionally sent him small sums for pocket money. The son attained the age of twenty-one, while his parents were residing in St. Anne's, Limehouse. In 1810 the parents quitted that parish, and took a tenement of 241. a-year at Gravesend, on which they resided when the son married, having been in the occupation of it upwards of a year before such marriage.Bayley, J. It is extremely desirable in cases of this nature to preserve an uniformity of decision, and to act, wherever it is possible, upon broad and general principles, and not to give effect to such nice and subtle distinctions as have been advanced in the argument in support of this order of sessions. It was laid down, as the rule, by Lawrence, J., in Rex v. Roach, that if a child leaves his father's family under twenty-one, and returns while he is under age, he continues to be part of that family, and his settlement will shift with that of his father;, but that if the child, when he attains twentyone, is absent from his father's family, the father thereby loses all control over him, he becomes emancipated, and his settlement will not shift with that of his father, but will continue to be in that parish where the father was settled when the child attained twenty-one. That learned judge there says, “In the case of the soldier, the son was enlisted when he was under age, and if he had returned home before he was twenty-one, he would have been considered part of his father's family; or if he had quitted the army before twenty-one, without returning home, the father might have reclaimed him by suing out a habeas corpus; but it appears from the case, that he had attained the age of twenty-one before he left the army: therefore, during the time that he continued a soldier, his father lost all control over him, he being of age; and the subsequent settlement gained by the father was not communicated to him.” After applying the reasoning in that case to the one before the Court, the learned judge adds, “ If, after such a service as this, the daughter had returned to her father before she was of age, she would have continued as part of her father's family; but, not returning till after, she can no longer be considered as part of his family.” Rex v. Cowhoneyborne, was decided upon the same principle. There, a widower having a daughter, placed her at eleven years of age with an uncle, by whom she was wholly maintained after that time, and with whom she continued to reside after she came of age, doing service for him, but without any contract of hiring to give her a settlement of her own; the father in the meantime having gone out to service. It was held, that on her coming of age she was emancipated. There, at the time she became twenty-one, she continued absent from her father's family. The same doctrine was laid down in Rex v. Hardwicke, the only distinction between that and the former cases being, that the original separation of the child from his father's family was not voluntary; he having been drawn for the militia while he was under age, and served in it until he was twenty-three years of age. That distinction, however, does not vary the question of emancipation; and the principle deducible from that latter case is, that a child is not part of his father's family while he remains subject to a control paramount to that of his father; and that if, while under age, he contract a relation inconsistent with the parental control, which relation continues until after he attains twenty-one, the authority of the father thereby wholly ceases, and he can no longer insist upon the child's returning into his family; and the child is emancipated. In this case, when the pauper's husband attained twenty-one, his father's settlement was at Limehouse, and he was absent from his father's family, in a service, in which he voluntarily continued after he was twentyone. The consequence was, that he then became emancipated, and that his settlement continued at Limehouse, though his father's had been transferred to Gravesend. The order of sessions must be quashed.

Rex v. New Forest, 5 T. R. 478; 2 Bott, 182; i Nol. P. L. 340. On

tion.
If a son at six.
teen hire him.
self for a year,
and serve that

mences from the termination of the service.

Newfoundland.
While he was so

new settlement. After he had at

the pauper returned to his father's house :

Thirdly, Of Old Martinmas-day, 1777, E. Coates hired himself for a year to G. Bowe of settlement by New Forest, and served that year: on the 22d December, 1777, E. Coales parentage. married his present wife: William Coates, a legitimate son of his by a

former wife, being within one month of the age of sixteen years, and having 3. Of emancipa

gained no settlement in his own right, on the same Martinmas-day, 1777, hired himself for a year to R. Nelson of Ellerton, which he served. The question was, whether, by reason of the service and settlement thereby

gained by the son under his hiring, the father could be considered as being year, the emanci. an unmarried man, by the emancipation (which, it was contended, was by pation com- relation at that moment complete) of his son ?-Lord Kenyon, C. J., (after

reciting the 3 W. & M. c. 11, s. 6,) said, that in this case the son was not separated from the father; when the father was hired, the son had gained no settlement for himself; he indeed did on the same day enter into a contract which might or might not have been completed, and which, when completed, would confer a settlement on the son; but at the time when the father entered into the relation of servant at New Forest, the son formed a

part of his family. A pauper, under

Rex v. Lytchet Matravers, 7 B. & C. 226; 1 M. f. R. 25. Isaac Orchard age, hired himself and his wife, were removed from Lytchet Matravers, Dorset, to St. James, to serve on board Poole; and the sessions quashed the order, subject, &c. Case:-The paua ship trading to

per never acquired any settlement in his own right. His father was settled

in Lytchet Matravers, and while he was so settled, the pauper hired himself serving, and before he attained by contract to serve for two summers and a winter on board a ship trading twenty-one, his to Newfoundland. In February or March, 1816, being then twenty years of father acquired a

age, he entered upon that service, in which he continued during the stipu

lated time. There was no evidence that his father ever exercised any control tained the age of over him during the period of his service. He attained the age of twentytwenty-one,

one years before his return from the voyage. Shortly after he had left this country, and before he had attained the age of twenty-one years, his father

acquired a settlement in St. James, Poole. On the pauper's return from Held, that the

Newfoundland, he went to reside in his father's house, who, before that time, emancipated had left Poole, and returned to Lytchet. After a few weeks he left his

father's residence, and lived with his sister, working on his own account, as acquired the new settlement, and well there, as during his residence with his father. The sessions were of

opinion, that the pauper was emancipated at the time when his father that of his father. acquired the settlement in Poole.-Bayley, J. The question in this case

is, whether at the time when the father gained a settlement in the parish of Saint James, Poole, the pauper was emancipated? If he was not, then his settlement would shift with that of his father. The father was settled in the parish of Lytchet Matravers, and whilst he was so settled, the pauper, his son, being then a minor, hired himself to serve for two summers and a winter. He entered into and continued in the service until he attained twenty-one years of age; but before he had attained that age his father had acquired a settlement in Poole. There can be no doubt that the settlement of a son, if he have none of his own, shifts with that of the parent, so long as the son continues part of the parent's family. When he ceases to constitute part of the parent's family, he is emancipated. The different instances of emancipation put by Lord Kenyon in Rex v. Offchurch, and Rex. v. Witton cum Twambrookes, and recognized by Lord Ellenborough in Rex v. Uckfield, are the child's attaining its full age, or being married, or gaining a settlement, 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. In Rex v. Roach, Lord Kenyon qualified what he was reported to have said, as to a son's being emancipated on attaining the age of twenty-one years, by limiting that observation to cases where the son at that age was severed from his father's family; and then adverting to the case of the soldier, he observes, that the soldier had ceased to be under the control of his parents, and had become subject to the control of others; and that as he did not return to the father until after he was of age, the case was thought too clear for argument. It is insisted that this case falls within the fourth class of cases mentioned by Lord Kenyon, and that the pauper, as soon as he entered into the contract, like the soldier who had

pauper was not

when his father

that his settle. ment shifted with

enlisted, was emancipated, because he had subjected himself to the control Thirdly, Of of others, and continued so subject until he had attained twenty-one. But settlement by there is this distinction between the case of the soldier and the present: the purentage. soldier, by enlisting, became subject to an authority paramount to that of his

3. Of emancipaparent; here the pauper, by contracting to serve the owner or the captain of tion. the ship, subjected himself to an authority not paramount but subordinate to that of his parent; for, by the law of England, the parental authority continues until the son attains the age of twenty-one. This distinction is pointed out by Holroyd and Best, Js., in Rex v. Rotherfield Greys; the latter there says, “ by the general policy of the law of England, the parental authority continues until the child attains the age of twenty-one 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." Lawrence, J., in Rex v. Roach, seems to take the same view of the subject, and to consider the authority of the state paramount to that of the parents, so long as the minor continues in the public service; but as soon as he leaves it, then the parental authority is restored. He there says, “ In the case of the soldier, the son was enlisted when he was under age, and if he had returned home before he was twentyone, he would have been considered as part of his father's family; or if he had quitted the army before twenty-one without returning home, the father might have reclaimed him by suing out a habeas corpus.Blackstone, in his Commentaries, vol. 1, p. 453, says, “ The legal power of a father over the persons of his children ceases at the age of twenty-one, for they are then enfranchised by arriving at the years of discretion, or that point which the law has established, when the empire of the father or other guardian gives place to the empire of reason. Yet, till after that age arrive, the empire of the father continues, even after his death ; for he may, by his will, appoint a guardian to his children. He may also delegate part of his parental authority, during his life, to the tutor or schoolmaster of his child, who is then in loco parentis, and has such a portion of the power of the parent committed to his charge, viz. that of restraint and correction, as may be necessary to answer the purposes for which he is employed.” It appears, then, that in ordinary cases the authority of a father over his child continues until the age of twenty-one ; but the case of a soldier is an exemption from the general rule. For an infant may by law enlist, and become bound to serve the state; and if he does contract to serve, and the state adopt him as their servant, that adoption severs him from his father's family, and he then becomes subject to the paramount control of the state. In Rex v. Woburn, the son enlisted at the age of sixteen into the same regiment of militia in which his father served, and lived with him to the age of twenty-three. Lord Kenyon thought as he lived in his father's family, the parent's control was not altogether destroyed, the guidance and direction of the child to a certain extent not being inconsistent with the occasional military situation in which he was. He seems to have thought that such a person might be subject to a double control. So in this case, if the father did not interfere, the son might be subject to the control of his master whom he had contracted to serve; but being part of his father's family, and subject to his paramount authority, the latter might have claimed his services at any time before he attained the age of twenty-one years. But in the case of a minor who enters into the army, the state will be entitled to his services, and against the public the father cannot claim them. Considering the principle upon which a minor who enlists as a soldier becomes emancipated, to be that he thereby contracts a relation inconsistent with a subordinate situation in his father's family, and considering that a minor who contracts to serve a subject, thereby makes himself liable to the double control of his father and his master, the authority of the parent being paramount to that of the master, I think that the pauper, in this case, when he agreed to serve the owner or captain of a ship, did not contract any relation inconsistent with a subordinate situation in his father's family; but that until he attained twenty-one, he continued part of his father's family, and subject to his paramount VOL. IV.

X

Thirdly, Of authority. Consequently, the sessions were wrong in holding that the pausettlement by per was emancipated, and his settlement shifted with that of his failer.

parentage. Their order must, therefore, be quashed. Order of sessions quashed. 3. Of emancipa

tion,

The effect of mar.

ments.

Residence with a

tlement,

(Fourthly)-Of Settlements by Marriage. (a) Fourthly, of If a woman marry a man who hath a known settlement, she, instanter, settlements by and ipso facto, by the marriage, acquires the husband's settlement; and she marriage. takes every subsequent seitlement which he may obtain until his death.

The children also of such marriage, in like manner take the father's settleriage upon settie: ment, wherever it may happen to be at the time they become chargeable,

until they are emancipated, or, in other words, acquire a settlement for themselves by their own act.

But if the husband has no settlement, then the prior settlement of the wife is not destroyed by the marriage, and she, in virtue of the marriage, confers her settlement thus retained upon her legitimate offspring, a privilege which does not belong to the mothers of children born out of lawful wedlock, such children being settled where they are born. (6)

These principles are developed and illustrated in the following cases :

It was said, in the case of Uphottery v. Dunksuell, S. & R. 89; 1 Sess. husband in the

Ca. 80, (cited by Bott and Nolan, as Appotens v. Dunswell,) that if a woman place where he is settled, is not ne

has not resided with her husband in the place of his settlement, she is not cessary to give settled there, according to the 13 & 14 Car. II. c. 12, for as she never was the wife his set.

at the place she could not live with him forty days irremovable as part of his family, which is in general necessary to complete a settlement. But the contrary doctrine has been fully established by the subsequent cases. Thus in St. Giles v. Eversley, 2 Sess. Ca. 116; 2 Bott, 81, the objection to the removal of the wife and children to the husband's settlement was, that she could not take the benefit of her husband's right of settlement after his death, as she had not taken any advantage of it in his life-time, but had waived it, and fixed in another place; but Eyre and Fortescue, Js., held that the wife and children must be sent to the last legal settlement of the hus

band and father; and they confirmed the order. A wife cannot It seems equally well settled that a wife cannot gain a settlement separate gain a separate

and distinct from her husband during the coverture. In Rex v. Aythorp tlement during Rooding, 2 Bott, 81; 1 Nol. P. L. 291, the wife, after the husband had

deserted her, went with her children from White Rooding, and lived upon a copyhold tenement of her husband's, forty days, without him, in Aythorp Rooding. Before the forty days expired, the parish officers gave her notice to remove out of the parish, and as she refused to depart, the justices removed her from thence to White Rooding as a person likely to become chargeable. The Court were unanimously of opinion that the wife could not gain a settlement by thus residing forty days upon her husband's estate, yet at the same time that she was irremovable from the property of her husband, upon being only likely to become chargeable. And even if she go and reside upon an estate devised to her after her husband has deserted her, she cannot thereby gain a settlement for herself.-Lord Hardwicke, C. J., said, there never was an instance where the wife was held to acquire a settlement during the life of her husband. A feme covert cannot by residence gain a settlement for her husband. Berkhampstead v. St. Mary Northchurch, 2 Bott, 33; 1 Nol. P. L. 291.

And even if the husband is in the progress of acquiring a settlement, as by commencing a residence upon his

estate, or by renting a tenement for a year, and he dies a few days only before it is completed, the widow cannot by continuing to reside and paying the year's rent perfect the settlement for herself and children. Rex v. Crayford, 6 B. &. C. 68; 9 D. & R. 80.

St. Giles's v. St. Margaret's, 1 Sess. Ca. 97; 2 Bott, 107; 1 Nol. P. L. 291.

and distinct set.

coverture.

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