« PreviousContinue »
maiden settlement remains.
has a settlement marries a man
A woman marries a foreigner, and her husband dies. The Court: she must Fourthly, Of be sent to the place of her settlement before marriage.
settlements by Rex v. Chiddingstone, 2 Stra. 683; 1 Nol. P. L. 291. It was stated, marriage. 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 settle- and his place of ment before marriage stands. And in Uphottery v. Dunkswell, the Court settlement not
known, the wife's 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; If a woman who 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 who has none, entered on board a man of war bound for the West Indies, but E. about and is deserted by two months ago beard he was living: and the question was, whether her him, she may be settlement which she had before marriage ceased, or was in suspense, dur- maiden settleing 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. ping, T. 9 Geo. 1. One Ridley, a vaNorton, which will be found in Andr. 307; grant, having no settlement, married a 19 Vin. Abr. 376; Burr. S. C. 122 ; 1 woman who had a settlement in St. Nol.P. L. 250; and was as follows:-An John's, Wapping, and had four children Englishwoman married an Irishman who by her, born in Stepney. And it was had no settlement in England. He ran held, that the children were not settled away ; bis wife was removed to her in the place where they were born, but maiden settlement. And it was urged, where the wife had a settlement; but that this was no separation from her that this was suspended during the coverhusband ; and if she cannot be sent ture, and it revived again upon the death thither, she can be sent no where. But of the husband. by Lee, C. J. It is now a settled point, This last case is that which is said that by the marriage the woman's settle- by Sir James Burrow, (Burr. s. C. ment is suspended, whether the husband 124) to have been turned into a catch, have or have not a settlement ; for in which form alone he had been able otherwise the justices might separate to meet with it. The metrical report is husband and wise; and therefore to as follows: make the order good, it should have A woman having a settlement appeared that the man was dead. And
Married a man with none : the order was quashed by the whole The question was, He being dead, court. These two cases were cited; If that she had was gone ? Hanway v. Marston, T. I Geo. I. It was there declared by the Ch. J. that Quoth Sir John Pratt*_Her settlement the settlement of a woman, who marries
Suspended did remain, a vagrant, is suspended during the co
Living the husband; but, him dead,
It doth revive again. verture; and that as the husband cannot be sent to the place of the wife's Chorus of Puisne Judges. settlement, so neither can the wife ber- Living the husband; but, him dead, self, because a husband and wife It doth revive again. being as it were but one person, cannot be parted. Shadwell v. St. John's, Wap- * Then Lord Chief Justice.
An Irishman's wife.
Fourthly, of regard to former resolutions in this Court, but we must judge upon the case settlements by before us. How that case came to be determined so, I do not know; but marriage. 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. T'he 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. The wife may be Řer v. Westerham, Fol. 252; 2 Bott, 108; 1 Nol. P. L. 292. The case removed to her maiden settle.
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 band's be not 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. Husband living, Dunsfold v. Wilsborough Green, Fol. 249; 2 Bott, 76. A woman who but having no known settle.
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 Wilsbo
rough, 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. f. 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. f. C. 615; 1 M. . R. 439.
In Rex v. Birmingham, 8 B. 8. C. 29; 1 M. f. R. Mag. Ca. 408; the sessions found that the panper, 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 Fourthly, Of the parish of Little Packington, for the purpose of changing the settlement settlements by of the pauper from Little Packington to the parish of Birmingham, where marriage. 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 Though the marexercised upon the individuals.- Lord Tenterden, C. J. Upon this point we riage be frauduwill not trouble you ; it is difficult to say, that if the marriage is valid in the wife will take other respects it could be invalidated by the fraud of other parties, and thus the husband's cause a separation of the husband from the wife.-Contra, it was urged, settlement. 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 10l. 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. f. R. 348.
Rex v. Ryton, Cald.39; 2 Bott, 114; 1 Nol. P. L. 293; S. Kidson and her On removal of a child, were removed from Winlayton to Ryton. The order of removal stated wife, it is supi. that S. K., the wife of B. K., a soldier in his Majesty's regiment of foot, now instance to prove in America, and Hannah their daughter, have come to inhabit,” &c. For her malden setthe 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.
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
is sufficient to call for an answer.
Fourthly, Ofshew some settlement of the pauper ont of the parish appealing: for this settiements by purpose the appellants produced a copy of the register of the birth of the marriage. pauper. On the other side it was objected that this was not sufficient, but
that the settlement of the husband ought to have been shewn, and that to identify the pauper it was necessary to prove her marriage. The sessions adjudged, that the proof of the birth of the paper was sufficient, and that the onus probandi of the marriage lay upon the respondents in order to prove their case, and quashed the order. A motion was made to quash the order of sessions upon the ground, that the pauper having been removed as a widow, imported that it was a removal to her late husband's settlement, and that her maiden settlement was nothing to the purpose. But the Court said : it may be the husband had no settlement; and if he had, till discovered, her own would in the mean time remain. It is enough in the first instance: the
sessions have done right. Rule denied. Primâ facie
Rex v. Harberton, 13 East, 311; 1 Nol. P. L. 293. Elizabeth, the wife of evidence of a set. Charles Hill, and A. H. and E. H., her daughters by her said husband, tlement in the appellant parish
were removed from Harberton to Drewsteignton, against which order there was an appeal. The respondents proved, that, in 1806, the pauper married Charles Hill, in Chagford ; and from a copy of the registry of the marriage which was produced, it appeared that he was therein described to be of the parish of Alverdiscott, and Elizabeth was therein described to be of Drewsteignton. They also examined the wife, who proved that the children mentioned in the order were born after the marriage, and also that her husband was with her in Harberton, a little after Christmas last, since which time he had left her, and she had not seen him since ; that he was not there when she was examined before the justices previous to, nor at, the time of her removal, and that she did not know her husband's settlement. The respondents gave no evidence to account for the absence of the husband, or of any further search having been made for him, or inquiry as to his settlement. The appellants produced no witnesses, nor did they offer any evidence of the husband's settlement. The sessions qu ed the order. Soon after this case had been opened at the bar, the Court said that there could be no doubt but that the evidence offered by the respondents, of the wife's maiden settlement, was primâ facie sufficient, and that it lay upon the appellants to rebut it, by giving evidence of the husband's settlement in a different parish : but the sessions having decided against the respondents, upon the supposition that they had not used due diligence in endeavouring to procure the attendance of the husband, or in accounting for his absence, or inquiring as to his settlement, without going further into the consideration of the case, this Court sent it back to be reheard by the sessions, to give the appellants an opportunity of entering into their own case, and of giving evidence of the husband's settlement; and the description in the copy of the marriage register of the husband, that he was of the parish of Alverdiscott, was considered to be no evidence of his having a settlement there.
Fifthly, of seitlement by hiring and
(Fifthly)-Ot Settlement by Wiring and Service. (a) This subject seems very naturally to divide itself into two parts; first, the hiring or contract, and secondly, the service, which together give this kind of settlement. But each of these parts, and especially the first, is susceptible of a variety of subdivisions, by which the essential ingredients to complete the right of settlement may become more obvious, and the rules of law applicable to them may be more clearly explained. In the first place, however, it is proper to state the various enactments which affect this species of settlement.
By 13 & 14, Car. II. c. 12, s. 1, after reciting the evils resulting from the vagrancy of the poor, it was enacted, “ that it shall and may be lawful, upon complaint made, by the church wardens or overseers of the poor
any parish, to any justice of peace, within forty days after any such person or
The statutes relating to settlements.
(a) See division of the subject, unte, 273.
persons coming so to settle as aforesaid, in any tenement under the yearly Fifthly, of value of ten pounds, for any two justices of the peace, whereof one to be of settlement by
quorum, of the division where any person or persons, that are likely to hiring and be chargeable to the parish, shall come to inhabit, by their warrant to re
service. move and convey such person or persons to such parish, where he or they were Persons remov. last legally settled, either as a native, householder, sojourner, apprentice, or able, unless secuservant, for the space of forty days at the least, unless he or they give sufficient rity given for the security for the discharge of the said parish to be allowed by the said justices. parish.
Sect. 3. Provided also, “ that (this act notwithstanding) it shall and may be lawful for any person or persons to go into any county, parish, or Certificates to place, to work in time of harvest, or at any time to work at any other work, prevent removal so that he or they carry with him or them a certificate from the minister of the parish and one of the church wardens and one of the overseers for the poor for the said year, that he or they have a dwelling-house or place in which he or they inhabit, and hath left wife and children, or some of them there (or otherwise as the condition of the persons shall require), and is declared an inhabitant or inhabitants there : and in such case, if the person or persons shall not retum to the place aforesaid, when his or their work is finished, or shall fall sick or impotent whilst he or they are in the said work, it shall not be accounted a settlement in the cases abovesaid, but that it shall and may be lawful for two justices of the peace to convey the said person or persons to the place of his or their habitation as aforesaid, under the pains and penalties in this act prescribed : and if such person or persons shall refuse to go, or shall not remain in such parish where they ought to be settled as aforesaid, but shall return of his own accord to the parish from whence he was removed, it shall and may be lawful for any justice of the peace of the city, county, or town corporate where the said offence shall be committed, to send such person or persons offending to the house of correction, there to be punished as a vagabond, or to a public workhouse in this present act hereafter mentioned, there to be employed in work or labour ; and if the church wardens and overseers of the poor of the parish to which he or they shall be removed, refuse to receive such person or persons, and to provide work for them, as other inhabitants of the parish, any justice of peace of that division may and shall thereupon bind any such officer or officers in whom there shall be default, to the assizes or sessions, there to be indicted for his or their contempt in that behalf.”
By 1 Jac. II. c. 17, s. 3, it is enacted, “ that the forty days' continuance Settlement by of such person in a parish, intended by the said act to make a settlement, forty days' resi: shall be accounted from the time of his or her delivery of notice in writing, very of notice. (which they are hereby required to do,) of the house of his or her abode, and the number of his or her family, if he or she have any, to one of the churchwardens or overseers of the poor of the said parish, to which they shall so remove."
The 3 W. & M. c. 11, s. 3, enacts, “ that the forty days' continuance of Notice to be pubsuch person in a parish or town, intended by the said acts to make a settle- lished. ment, shall be accounted from the publication of a notice in writing, which he or she shall deliver, of the house of his or her abode, and the number of his or her family, if he or she have any, to the church warden or overseer of the poor, which said notice in writing the said churchwarden or overseer of the poor is or are hereby required to read, or cause to be read publicly, immediately after divine service in the church or chapel of the said parish or town, on the next Lord's day when there shall be divine service in the same; and the said churchwarden or overseer of the poor is or are hereby required to register, or cause to be registered, the said notice in writing in the book kept for the poors' accounts.'
But the 35 Geo. III. c. 101, s. 3, enacts, “ that no person coming into Notices abolishany parish, township, or place, shall, from and after the passing of this ed. act, be enabled to gain any settlement therein by delivery and publication of any notice in writing.”
By 3 W. & M. c. 11, s. 4. “ No soldier, seaman, shipwright, or other Soldiers, &c., not artificer or workman employed in their Majesties' service, shall have any ment by notice settlement in any parish, port town, or other town, by delivery and publica- till after dismistion of a notice in writing as aforesaid, unless the same be after the dismis- sion. sion of such person out of their Majesties' service.”