Thirdly, Of settlement by parentage. 3. Of emancipa enlisted, was emancipated, because he had subjected himself to the control of others, and continued so subject until he had attained twenty-one. But there is this distinction between the case of the soldier and the present: the soldier, by enlisting, became subject to an authority paramount to that of his parent; 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 settlement by parentage. 3. Of emancipa tion. authority. Consequently, the sessions were wrong in holding that the pauper was emancipated, and his settlement shifted with that of his father. Their order must, therefore, be quashed. Order of sessions quashed. Fourthly, Of settlements by marriage. (Fourthly)-Of Settlements by Marriage. (a) If a woman marry a man who hath a known settlement, she, instanter, and ipso facto, by the marriage, acquires the husband's settlement; and she takes every subsequent settlement which he may obtain until his death. The children also of such marriage, in like manner take the father's settleriage upon settlement, 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. The effect of mar ments. Residence with a husband in the place where he is settled, is not necessary to give the wife his settlement. A wife cannot gain a separate and distinct settlement during coverture. 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. (b) These principles are developed and illustrated in the following cases :— It was said, in the case of Uphottery v. Dunkswell, S. & R. 89; 1 Sess. Ca. 80, (cited by Bott and Nolan, as Appotens v. Dunswell,) that if a woman has not resided with her husband in the place of his settlement, she is not settled there, according to the 13 & 14 Car. II. c. 12, for as she never was 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 husband and father; and they confirmed the order. It seems equally well settled that a wife cannot gain a settlement separate and distinct from her husband during the coverture. In Rex v. Aythorp 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. A woman marries a foreigner, and her husband dies. The Court: she must be sent to the place of her settlement before marriage. Rex v. Chiddingstone, 2 Stra. 683; 1 Nol. P. L. 291. It was stated, that a single woman settled at Chiddingstone was married to a man who was since dead, but his settlement did not appear. The Court: her settlement before marriage stands. And in Uphottery v. Dunkswell, the Court said where it appears that the husband in his lifetime had no legal settlement that can be found, there the marriage shall not put her in a worse condition than she was before, and is all one as the case of a Scotchman and a foreigner, and she shall not lose her former settlement. St. John's, Wapping, and St. Botolph's, Bishopsgate, Burr. S. C. 367; 2 Bott, 108; 1 Nol. P. L. 291. E. Kinley married T. Kinley an Irishman, who had no settlement in England. About two years ago, the husband entered on board a man of war bound for the West Indies, but E. about two months ago heard he was living and the question was, whether her settlement which she had before marriage ceased, or was in suspense, during the coverture; and she should be looked upon as a casual poor; or she should be sent to the place of her settlement before marriage? After full consideration, Ryder, C.J., delivered the opinion of the Court: 1. It is certain St. Botolph's was once her settlement, and that is not disputed. 2. That settlement continues till she gains a new one. 3. That she has never yet gained a new one. To the second point he said, a settlement is a permanent thing; it lasts during life, or till a new one is acquired: and there is no case to be found where it has been determined or ceased sooner. Neither can any person discharge his own settlement sooner, or by any other means. The question is not, whether she gained any new settlement by marriage, but whether her old settlement were discontinued by her marriage with a person who had none? It is absurd to say, she shall lose her own without getting another. The objection that the husband and wife would be separated, is of no weight here; for they are separated already: I must own the case of Stretford v. Norton (a) is not to be distinguished from the present, and is against our present opinion: to be sure we must have great (a) This case overruled Stretford v. Norton, which will be found in Andr.307; 19 Vin. Abr. 376; Burr. S. C. 122; 1 Nol. P. L. 250; and was as follows:-An Englishwoman married an Irishman who had no settlement in England. He ran away; his wife was removed to her maiden settlement. And it was urged, that this was no separation from her husband; and if she cannot be sent thither, she can be sent no where. But by Lee, C. J. It is now a settled point, that by the marriage the woman's settlement is suspended, whether the husband have or have not a settlement; for otherwise the justices might separate husband and wife; and therefore to make the order good, it should have appeared that the man was dead.-And the order was quashed by the whole court. These two cases were cited; Hanway v. Marston, T. 1 Geo. I. It was there declared by the Ch. J. that the settlement of a woman, who marries a vagrant, is suspended during the coverture; and that as the husband cannot be sent to the place of the wife's settlement, so neither can the wife herself, because a husband and wife being as it were but one person, cannot be parted. Shadwell v. St. John's, Wap ping, T. 9 Geo. 1. One Ridley, a va- This last case is that which is said A woman having a settlement Married a man with none : Chorus of Puisne Judges. Then Lord Chief Justice. Fourthly, Of settlements by marriage. An Irishman's wife. The wife may be removed to her maiden settle band's be not regard to former resolutions in this Court, but we must judge upon the case before us. How that case came to be determined so, I do not know; but there are at least four authorities the other way, (which perhaps might not then be cited,) and we think the reason is with the old cases. The husband may come to her in one parish as well as the other, for he will be a vagrant in both, and liable to be treated as such. The wife's settlement remains, having never been determined, but only, as it were, suspended during the time that she continued under the power and protection of her husband, and was maintained and supported by him. St. Giles's v. St. Margaret's, S. & R. 97; 1 Nol. P. L. 291. S. E. was settled at St. Giles's; and marries an Irishman.-By the Court: the marriage will not put her in a worse condition than she was before; and they held that she continued her settlement notwithstanding her marriage. Rex v. Westerham, Fol. 252; 2 Bott, 108; 1 Nol. P. L. 292. The case stated by the sessions was this: it appeared to the Court by the testimony ment, if the hus. of E. P., that she was, at the time the said order was made, a married woman, and that her husband was one T. P., who was born in Wiltshire, but in what place he had a settlement he never informed her, nor doth she know; but that he is run away, and still living, for what she knows.—By the Court: whether the husband be living or dead, signifies nothing. For unless it appear that he has a settlement, the woman must be sent to the place of her settlement before marriage: for, supposing the husband was born upon the high seas, or in Ireland, or a foreign country, if the woman might not be sent to the place of her settlement before marriage, she might be starved. known: Husband living, but having no known settle Dunsfold v. Wilsborough Green, Fol. 249; 2 Bott, 76. A woman who was settled at Wilsborough, married A. P., a Scotchman, who had gained ment in England. no settlement in England. She was removed from Dunsfold to Wilsborough, the place of her settlement before marriage. To this it was objected that this was the case of a married woman, and by her marriage she ought to be settled where her husband was, and this cannot be right; for if the justices may send away a wife, it is making a divorce between husband and wife; and if he is a Scotchman, they ought to send her, as part of his family, to the bordering counties of Scotland, according to the act 39 Eliz. c. 4, s. 6. The Court held, though she were a married woman, yet if her husband had no settlement, she could not claim any other settlement than she had before marriage; and as for divorce it was none; for the husband might come to her as well at Wilsborough as at Dunsfold. It may be expedient here to observe, that by the 59 Geo. III. c. 12, s. 33, the whole family of a Scotchman or an Irishman, in such case, must be sent to his country, upon becoming chargeable: see post, as to “the removal of paupers to Scotland or Ireland." The legislature, in authorising the removal of Scotchmen and Irishmen, with their families, when they become chargeable, and have no settlement here, to their own country, (see 59 Geo. III. c. 12, s. 33,) does not authorise the removal of the wife alone to the place of her husband's birth. The law, therefore, remains as it stood before that statute in cases where the husband deserts his wife. In Rex v. Leeds, 4 B. & A. 498, the husband and wife were living together, and it was held that she must be passed with him to Scotland, and could not be removed to her maiden settlement. No mischief will result from this decision, for during the absence of the husband, who has left his family chargeable, they must be maintained by the parish bound to maintain them, and upon his return, that parish may pass him and his family to Scotland or Ireland, &c., whichever is the place of his birth. It follows, therefore, notwithstanding this statute, that if the husband, being such foreigner, dies or quits his family, and they become chargeable, the removal must be to the wife's maiden settlement. Rex v. Cottingham, 7 B. & C. 615; 1 M. §. R. 439. In Rex v. Birmingham, 8 B. §. C. 29; 1 M. & R. Mag. Ca. 408; the sessions found that the pauper, L. S., was married to E. S., when he was a minor, by licence, and without the consent of his father. The case also stated that the appellants offered to prove that the marriage of the pauper was effected by a fraudulent contrivance and conspiracy of the overseers of the parish of Little Packington, for the purpose of changing the settlement of the pauper from Little Packington to the parish of Birmingham, where the husband was settled; but the sessions refused to receive this evidence, and confirmed the order. It was now contended that no force or fraud was exercised upon the individuals.-Lord Tenterden, C. J. Upon this point we will not trouble you; it is difficult to say, that if the marriage is valid in other respects it could be invalidated by the fraud of other parties, and thus cause a separation of the husband from the wife.—Contra, it was urged, that Mr. Nolan cites Dalton to shew that no settlement brought about by fraud should be considered valid. Const certainly makes a distinction as to marriage, and it must be admitted that the inconvenience pointed out by the Court, of separating husband and wife, might arise. No case has, however, decided that a marriage so obtained will confer a settlement.—Lord Tenterden, C. J. Will it not come to this, that the Court will interfere to prevent the effect of fraud, where its interference will not break in upon something much higher?—Bayley, J. Mr. Nolan also seems to consider that marriage is excepted. The same point had been virtually detetermined in Rex v. Edwards, 8 Mod. 321; 1 Sess. Ca. 265; 1 Bott, 334; 1 Nol. P. L. 292, n. The overseers were indicted for a conspiracy, in giving a small sum of money to a poor man of another parish, for marrying a poor lame woman of their own parish, and so by this contrivance conspiring to settle the woman in the other parish, where the husband was settled. By the Court: If there be a conspiracy to let lands of 107. a-year to a poor man, in order to gain him a settlement, or to make a certificate man a parish officer, or to send a woman big of a bastard child, into another parish to be delivered there, and so to charge the parish with the child, these are certainly crimes indictable. But this indictment was quashed for want of averment, that the woman was last legally settled in the parish relieved by her marriage. Rex v. Watson, 1 Wils. 41. An information was granted against Watson and others, for procuring one Vine, a soldier, who had a settlement in Brill, to marry a poor woman, who was an idiot, and chargeable to Dorton, by giving a certain reward to Vine, whereby she became chargeable to Brill. And where the facts objected against the validity of a marriage arise in the conduct of the parties themselves, they may have no greater effect. Thus when a woman on the death of her husband resumed her maiden name, and after several years was again married by banns in that name, describing herself as a widow; it was held that in the absence of fraud, such marriage was legal, and that her settlement followed that of her second husband. Rex v. St. Faith's, Newton, 3 D. & R. 348. Rex v. Ryton, Cald.39; 2 Bott, 114; 1 Nol. P. L. 293; S. Kidson and her child, were removed from Winlayton to Ryton. The order of removal stated that S. K., the wife of B. K., a soldier in his Majesty's regiment of foot, now in America, and Hannah their daughter, have come to inhabit," &c. For the respondents it was stated, that Sarah's maiden settlement was in Ryton; that her husband was at the time of the order in America, and it was not known whether he were living or dead; and that his settlement was unknown; and therefore the pauper had been removed to her settlement before marriage.-Contra, it was objected that it was not stated in the order that Benjamin was dead, nor evidence given that he was dead, nor that the place of his settlement could not be known. But the Court were of opinion to admit evidence of the facts stated; and the same being fully proved, discharged the appeal.-Lord Mansfield, C. J. The sessions say, that the evidence laid before them proved that which would make the order of the two justices right; and I think that upon the evidence they did right. The other judges concurred. Both orders affirmed. The same point, in Rex v. Edisore, otherwise Hedsor, Cald. 371; 1 Nol. P.L. 260, was determined in like manner. Likewise in Rex v. Woodford, Cald. 236; 2 Bott, 86; 1 Nol. P. L. 293. M.P., widow, and her four children, were removed from Woodsford, to Wimbourne Minster, in Dorsetshire. Order quashed. Case: By rule of the sessions in Dorsetshire, on appeals against orders of removal, the appellants begin, and Fourthly, Of settlements by marriage. Though the marriage be frauduthe wife will take lently obtained, the husband's settlement. On removal of a wife, it is suffi. cient in the first instance to prove her maiden settlement. |