Eighthly, Of settlement by estate. 4. Of the residence. Same point. If the estate be leased, and the owner reside forty days upon it by leave of the lessee, for the purpose of mak. ing repairs, he is settled there. his own, his settlement shall attend that of his father; but otherwise it is where he has been separated from his father, and has gained a settlement of his own. The consequence is, that as in this case the children have always continued in the father's family, and it is not stated that they have gained a settlement of their own, though some of them are twenty or thirty years old, they are settled where the father is. And the law is the same in the case of a mother as of a father. The rest of the Court was of the same opinion with the Chief Justice, upon both points, and for the same reasons. And therefore the order of justices was now confirmed, and the order of sessions quashed. Rex v. St. Nyott's, T., 13 Geo. II. Burr. S. C. 132; 2 Bott, 676. Nicholas Penquite, the pauper, was born at St. Cleere: afterwards he gained a settlement at St. Nyotts's; and from thence returned to St. Cleere, and lived there with his mother, on a tenement, in part of which he had an estate of freehold and inheritance, and of which he was seised in common together with his mother and sisters. He worked there as a day labourer, and lodged sometimes on his own estate, and sometimes in other places, where he worked in St. Cleere, and at other times in other parishes adjoining; but did not reside on his estate in St. Cleere, or in St. Cleere, forty days together at any one time, between his return to, and selling his estate in, St. Cleere (about three years).—By the Court. This depends on the 13 & 14 C. II. which directs the sending a pauper to the place where he was last legally settled for the space of forty days. But this man continued, off and on, for more than forty days. And it is not necessary that he should have resided there forty days together. He was irremovable from St. Cleere for above forty days; and that is sufficient. Rex v. Houghton-le-Spring, 1 East, 247. Removal from South Shields to Houghton-le-Spring, confirmed. Case: The pauper became entitled as heir to three copyhold houses, let at 61. per annum, and to one freehold house at Sedgefield. Upon becoming so entitled, he let to R. W. the freehold house at 31. per annum, the pauper undertaking to sink a cellar, and make some repairs in the premises. W. entered and occupied. The pauper in pursuance of such agreement, went, after W. had possession, from Houghton to Sedgefield, for the sole purpose of sinking the cellar, and making the repairs. He was occupied upon the work for forty days, during the whole of which time he resided as a lodger in W.'s house. After finishing the work he returned to Houghton, to his father, with whom he lodged. During the whole of the pauper's residence at S., the copyhold houses were in mortgage to R. W. for 401. Rex v. Dunchurch, was cited to shew that where the property is leased to another, a residence upon it will not gain a settlement.-(But per Lord Kenyon, C. J. That was the case of a purchase, and a distinction has always been taken between cases, where the party came to his property by his own act, or by operation of law.)-It was also said that the general expression which runs through all this class of cases, that a party shall not be removed from his own estate, seemed to imply that he must be in possession of it, though he need not actually reside in it. On the other side it was argued, that in Rex v. Catherington the mortgagee was in posses sion, and there did not appear any surplus on which the interest of the mortgagor could attach. That in Rex v. St. Michael's, Bath, the insolvent had conveyed all his interest to trustees, and no probability of a surplus; and the possession of it was afterwards fraudulently obtained by him. Here the pauper had a substantial freehold interest in the parish where he resided, and an undisputed residue in the copy hold premises. In Rex v. Souton he resided, not on his estate, but at an alehouse; yet he gained a settlement. Further, 1st, A man cannot be removed from his estate devolved on him by operation of law, whatsoever the value may be. 2d, A residence for forty days irremovable will gain a settlement, except in case of a purchase under 301. 3d, It is enough to reside in the same parish. Ryslip v. Harrow, Rex v. Sowton, Rex v. St. Nyott's, Rex v. Hasfield. 4th, The party need not actually occupy his estate. It is sufficient to reside in the parish where he has a freehold.-Lord Kenyon, C. J., was clear that a settlement was gained at Sedgefield, and said that he was decided by the case of Hasfield, where the child, residing with his grandmother, could not be taken to have been in actual occupation of the property; nor did the judgment of the Court proceed upon any such ground (a). Grose, J., agreed, That a mere residence in the parish where the estate was, was sufficient.-Lawrence and Le Blanc, Js., doubted; but afterwards the Court were all agreed that here was a settlement gained in Sedgefield. Rex v. Aythorp Rooding, Burr. S. C. 412; 2 Bott, 104. William Gates, husband of the pauper, Susannah Gates, being settled at White Rooding, went away and left his wife and children. Whereupon, she and her children went and lived for forty days, without her husband, in a copyhold tenement of her husband's at Aythorpe Rooding. She was removed to White Rooding. Order quashed. By the Court. There doth not appear any dissent of her husband from her going there, and therefore it is rather to be presumed that she went with his consent. The husband's settlement remains as it was, but nevertheless the wife was not removable from his estate. It is one thing to say, that a person may not be removed; and another, that such person doth not gain a settlement. The husband himself would not have been removable from his own if he had gone thither. A man's right to reside upon his own estate is founded on Magna Charta, which says, that a man shall not be disseised of his freehold. A wife hath a natural right to go and reside upon her husband's estate. If she had gone against her husband's consent, it would have made an alteration. And the Court were unanimous, that the justices could not remove her from her husband's property. Rex v. Leeds, Burr. S. C. 524; 1 Bla. Rep. 466. Joseph Howe, husband of Anne Howe, the pauper, took a tenement of 10l. a-year at Blackfordby, and resided there above forty days. Afterwards he took a tenement at Leeds of above 10l. a-year, and went and resided there for above forty days, leaving his wife at Blackfordby. Then he returned to Blackfordby, and staid with his wife there twenty-seven days. And on his leaving her, and going away to Leeds, she was removed from Blackfordby to Leeds, as to her place of settlement. Order confirmed. It was agreed, that her settlement must follow that of her husband: but the Court were of opinion, that the justices had no power to remove her from Blackfordby, whilst her husband's interest there subsisted. The husband himself could not have been removed from his own tenement at Blackfordby, the lease whereof was unexpired. And if they could not have removed the man himself from his own, it follows, that they could not remove his wife so long as it remained his. Both orders quashed. Rex v. Martley, 5 East, 40 (ante, 622). A pauper made a purchase under 301. and became chargeable. It was held that, although he gained no settlement, he was not removable from his own estate. But if the tenement is rented, and is under the annual value of 10l., he is removable. See 13 & 14 Car. II., and Rex v. Chew Magna (ante, 616). It will be observed, that there are dicta of learned judges scattered through the cases, to the effect that, being irremovable for forty days, and gaining a settlement, are convertible expressions. But all these relate to the state of the law as it existed under 13 & 14 Car. II. Rex v. Brington, 7 B. & C. 546; 1 M. & R. 431; 1 M. & R. Mag. Ca. 122. Order of removal of Maria Chambers, wife of Edward Chambers, a convict at Van Diemen's Land, and their daughter, Mary Elliott, from Brington to Badby, quashed. Case: John Elliott, by a marriage settlement, in January, 1772, settled a messuage in Little Brington, and about twenty acres of land, in trust to himself for life, and remainder to his wife; and after other remainders, remainder to the first son and his heirs, remainder to the second and every other son, remainder to the use of the daughters of the said John, on the body (a) It is to be collected from a MS. note of the late Mr. Masterman that the boy (in Rex v. Hasfield,) was not living on his estate. It also appears that the settlement of the same pauper came in question again in Ryslip v. Hendon, 5 Mod. 416, where Holt, C. J., inciden- Eighthly, Of settlement by estate. 4. Of the residence. that she was residing upon her own, and irremovable. of Mary, and the heirs of their bodies, as tenants in common. They had four sons and eight daughters, all of whom died without issue, in the life-time of their mother, except four daughters, viz. Elizabeth, Alice, Maria, and Sophia, who survived her. Maria, the pauper, married Edward Chambers, whose legal settlement is now in Badby, where she was living until February, settlement: Held, 1826, (her husband being at that time, and continuing at the date of the order of removal, absent from England,) when she went to Brington, the parish in which the property lies, to her sister, who lives in the house mentioned in the settlement, and resided there thirteen weeks, until she was removed to Badby.—Bayley, J. The question is not as to the place where the wife is settled; that, without doubt, is in her husband's parish, Badby. This is a case where the party goes to her own estate, of which she has a seisin the husband had not sole seisin; for when an estate in fee comes to a feme covert, the interest of the husband and wife is a seisin in fee, and both in right of the wife. Polyblank v. Hawkins, Doug. 329. Rex v. Aythorp Rooding, is not so strong a case as the present: there the property was the husband's, while here it is the property of the wife, descendable to her heirs. There is no distinction between a sole occupation, and an occupation in coparcenary. Although no partition had been made, the wife had a right to say that she would occupy her part, and not suffer other persons to occupy it. And there might be good reason for it here; as, by the husband's absence abroad, it might have been difficult to collect the profits without residence. The pauper, therefore, is irremovable, although she could not have gained any settlement by her residence in Brington. [As to settlement by estate, by certificated persons, see post.] Ninthly, Of settlement by office. 1. Statutes on the subject. (Ninthly) — Of Settlements by Office. (a) A man who is of sufficient repute and station among his neighbours, to be appointed to a public annual office, and who discharges the duties of such office for that period, seems peculiarly entitled to the privilege of a settlement in the parish where he has been thus known and employed. The law, therefore, which is to this effect, carries with it an obvious propriety, not so easily to be discerned in some of the other species of settlement. [See Lord Ellenborough's observations in Rex v. Mersham, 7 East, 167, post, 645.] The subject is divisible as follows: 1. Statutes on the Subject. : 2. What Office, and what placing therein, will gain a Settlement. 4. Of the Residence. 1. Statutes on the Subject. The 3 & 4 W. & M. c. 11, s. 6, enacts "That if any person, who shall come to inhabit in any town or parish, shall for himself, and on his own account, execute any public annual office or charge in the said town or parish, during one whole year, or shall be charged with and pay his share towards the public taxes or levies of the said town or parish, then he shall be adjudged and deemed to have a legal settlement in the same, though no such notice in writing be delivered and published, as is hereby before required." And the 9 & 10 W. III. c. 11, enacts "That no person or persons whatsoever, who shall come into any parish, by any such certificate as aforesaid, shall be adjudged by any act whatsoever to have procured a legal settlement in such parish, unless he or they shall really and bonâ fide take a lease of a (a) See general division of the subject, ante, 273. tenement of the value of ten pounds, or shall execute some annual office in such parish, being legally placed in such office." [See the construction of these acts in Rex v. Mersham, 7 East, 167, post, 645, and in the other following cases.] 2. What Office, and what placing therein, will gain a Settlement. Ninthly, Of settlement by office. The nature of the office is defined by the enactment itself;-it must be 2. What office, &c. an annual office or charge, and public in its nature, and the party must have been legally placed in such office. The act also requires that the person shall execute it for himself, and on his own account, to entitle him to a settlement thereby; it follows that one who fills the office for another person, or a deputy, gains no settlement. A person sworn into and serving the office of constable, as deputy to another, does not thereby gain a settlement. 19 Vin. Abr. 379. ment. Rex v. Winterbourn, Burr. S. C. 520; 1 Bla. Rep. 452. (a) The custom Deputy constable was for the constable to be presented by the jury at the leet. The jury pre- gains no settlesented R. Bayly, Esq., who procured the pauper to serve for him, in order to gain the pauper a settlement. The pauper, accordingly, was sworn into the office by a justice, and served the same for a year; but was not presented thereto at the court leet, as constable in his own right. The Court were clear that this was not serving an office on his own account, within the intent of the statute. Rex v. Allcannings, Burr. S. C. 634; 2 Bott, 242. The house occupied Same point. by Mr. Amor, being in turn to furnish a tithing-man for Patney, the leet jury presented him to that office. And he, by leave of the court leet, put in his place Thomas Palmer, a common labourer, and housekeeper, living in the parish; who was sworn in at the leet, and served the office for a year; Amor paid him all expences attending the execution of it.—Lord Mansfield. The question is, Whether the pauper served this office on his own account or not? The question is not how he was presented to it, but how he served it; and after stating the facts, said, It is clear that he executed the office for Amor, and not for himself. The rest of the Court concurred, and Yates, J., said, In the case of Winterbourn, the pauper was considered as a substitute. Rex v. Hope Mansell, E., 23 Geo. III., Cald. 252. James Davies, &c., was removed from Hope Mansell to Brampton Abbotts. Order quashed. Case: D. Davies, being a certificate person from Ross to Brampton, resided at Brampton, where his son, the pauper, was born: the son lived in the parish, was chosen constable, and sworn to execute the office. After being so sworn, he declared he would not serve himself, and employed and paid another to serve for him; and the Court were of opinion, that the pauper, having been sworn into office, and executing it by deputy, discharged the certificate and acquired a settlement. A constable residing under a sworn into his office, and exedeputy: He gains a settlement under 9 & 10 W. certificate was cuted it by & M. Secus under 3 & În Rex v. St. Maurice, Winchester, Burr. S. C. 34,-Lee, J., in alluding to Rex v. Burclean, said, "In that case the Court unanimously held, that this 4 W. & M. act (9 & 10 W. III.) was not to be considered as an explanatory, but a new act;" and he added, "And that is true; for it enlarges the certificate man's power of gaining a settlement: for now, if he executes such an office by deputy, he gains a settlement; whereas, by 3 & 4 W. & M., he was to execute it for himself, and on his own account." Gatton v. Milwich, Set. & Rem. 241; 2 Salk. 536; Fol. 123; 2 Bott, 157. A person being chosen parish clerk by a parson, served for several years, and received his fees and dues.-By the Court. It is a parish office, and has the care and custody of the ornaments of the church. Tis more than an annual office, for he is not movable and has fees: he is by common law an officer, and in for life. 'Tis true, if he is poor, and has a family, they may remove him: for although he came in by the parson only, yet their not removing him (a) Mr. Nolan cites this case as an authority for saying that under 3 & 4 W. & M. a person must be appointed to the office; but the case, as reported in Parish clerk is an annual office. Ninthly, Of settlement by office. 2. What office,&c. The deputy of a parish clerk requires no licence from the ordinary. Where the court leet of the manor of A. appointed a person to be street-driver of the borough of R., a district within the manor, extending into seven parishes, and it appearing, first, that it was not an annual office; second, that he took no oath of office; and third, that he had not served under the appointment for one whole year: Held, that he had not such a public annual office or charge as would gain him a settle ment under 3 W. & M. c. 11, s. 6. implies their consent and approbation; and by this consent of theirs, the law adjudges him in by the concurrence of the parish. In Rex v. St. Mary, Berkhamstead, 2 Sess. Ca. 182, the Court seemed to be of opinion, that the executing the office of parish clerk is sufficient for a certificate-person to gain a settlement; for it is an annual office and more. In Peak v. Bourne, 2 Stra. 942, the plaintiff declared in prohibition; for that he was sued for serving the office of deputy parish clerk, without the licence of the ordinary; and the Court held, that a licence was not necessary. Rex v. Yalding, 3 D. & R. 352; 2 D. & R. Mag. Ca. 39. Order of removal of John Russell from Yalding to Marden, quashed. Case: The manor of Aylesford is a manor of the ancient demesne of the Crown, the court-rolls of which have been regularly kept for a long series of years, and the borough of Rugmorhill is a district within the manor, extending into seven parishes, and some part of it lying within the parish of Yalding. At a court-leet holden for the manor, it has been usual, from time immemorial, to appoint constables and borsholders, such officers being always expressed to be appointed to serve "for the year ensuing," and sworn to discharge the duties. A custom of appointing an ale-conner at the court-leet, has also existed in the manor from time immemorial, but it does not appear that that officer was ever sworn to execute his office. Since 1793, the office of weigher of weights and measures has been added to that of ale-conner. These latter, as well as the street-driver, have been appointed from time to time at the same court-leet as the constables and borsholders, although not expressed to be" for the year ensuing." At a court-leet holden in 1750, a street-driver of the borough of Rugmorhill was appointed for the first time. Similar appointments took place in 1753, 1764, 1772, and 1784, and from that time to the present, thirty-eight courts-leet have been held, at each of which a street-driver has been appointed, with the exception of 1798, no court having been held in that year. But in 1799, two court-leets were held, one in January, and one in November, at which the appointments were in the same form as in other instances, so that such officer, together with the constables, borsholders, &c., has been appointed on the days of holding the court-leet, which have occurred at intervals, sometimes of more, and sometimes of less, than a year; but it does not appear that he was ever sworn to discharge the duties of his office, or that there is any oath applicable to the office. In the record of the proceedings of a court-leet holden for the manor of Aylesford, on the 19th of January, 1813, is the following entry: Also they present and appoint John Russell to be street-driver of and within the borough of Rugmorhill, within the manor." On the 8th of January, 1814, the pauper was again appointed in a similar form, and a third time on the 20th of February, 1815. The pauper never appeared at the courts at which he was nominated, and was never sworn. He discharged the duties of the office in person, from the 19th of January, 1813, up to his re-appointment on the 8th of January, 1814; he also served in person for a short period after his re-appointment in 1814, but another person, to whom he paid no compensation, served, at his request, in his stead, during the remainder of 1814, and after his appointment in 1815; including, however, his services under the first and second appointments, he served the office in person for more than a whole year. During 1813, 1814, and 1815, he resided in the respondent parish, but not in that part of it which is situate within the borough of Rugmorhill, where his duties were to be executed. He was not residing under a certificate.-D. Pollock, in support of the order, raised three objections; first, that the situation filled by him is not a public office; second, that he was never legally placed in the office, inasmuch as he was not duly sworn in upon his appointment; and, third, that he did not personally serve the office during a whole year, nor on account of the whole parish. With respect to the last point, it was urged, St. Thomas, Winchester, v. St. Mary, Winchester, was decisive to shew that the service was sufficient. [Bayley, J. There the pauper executed the office throughout the whole of the parish in which he resided, and therefore it was fairly to be presumed that it was notorious to every inhabitant of the parish, that he did, in fact, hold the office.] There are many other cases which shew, |