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3. Removal of

If a mother and child have different settlements, it seems that the bastard Secondly, child, like all other children, shall go with the mother for nurture, until the Who may be age of seven years. Thus in Cripplegate v. St. Saviour's, it was agreed by

removed. the whole Court, that the age of a nurse child, so as to go along with its mother, is until seven years of age. So also in Skeffreth v. Wulford, 2 Sess. children. Ca. 90. The order was to remove a woman to her settlement; and her bas- Bastard not to be tard child, of two years of age, to another parish, at a distance from the removed whilst a mother, being the place of its birth. It was objected, that the child being

nurse child. a nurse child, it could not be separated from the mother, by reason of the care necessary to nurture so very young a child; which none can be supposed so fit to administer as the mother of it; and, therefore, it should have been sent with her to the place of her settlement. And the order was quashed by the Court for that reason. But it appears to be settled, that although whilst the To be maintainchild continues with its mother as a nurse child, it is irremovable to its place child, by its own of settlement, yet the parish, where it is legally settled, shall maintain such parish. child in the other parish, where it is resident with its mother.

Rex v. Hemlington, Dougl. 9. (n. 2). Case: Elizabeth, a single woman, with her child Mary, went, under a certificate, from Hemlington to Darlington, in which last parish she had two bastard children, and there became chargeable. An order being made for the removal of her and Mary to Hemlington, she took the two children who were born in Darlington with her, they being both under the age of emancipation. Two justices made an order on Darlington for the maintenance of the two children born in that parish, which order, upon an appeal, was quashed. In support of the order of sessions, it was urged, that there is no statute which gives the justices any authority to make an order for the maintenance of children on a parish where they do not actually reside. That there are only two instances where a power of that nature is vested in justices, viz., 1. Where it is necesssary to assess one parish in aid of the poor rate of another; and 2nd. In the cases of paupers improperly removed. That it would be much more expedient, that the parish which is bound to maintain the mother, should also maintain, as casual poor, the children which she had a right to bring with her, and which could not be taken from her before the age of seven; and it was also said, that the practice had been conformable to what was thus contended for. —Lord Mansfield, C.J., said, no authorities having been cited in support of this proposition, and there are many against it, viz , Rex v. St. Giles's in the Fields, T., 6 & 7 Geo. II., Burr. S. C. 2.; Rex v. Wangford, 2 Wils. 3; Fort. 307; and Rex v. Saxmundham, 2 Bott, 18, which is directly in point. The practice is also agreeably to those cases.--Aston, J., cited another case, where it was directly held that the parish where the settlement of the nurture child is, shall maintain it.-Judgment to quash the order of sessions, and confirmed the original order by which the parish of Darlington was charged.

Shermandbury v. Bolney, Carth. 279. A woman with three children, all There is no difunder seven, being settled in Shermandbury, married a person settled in Bolney. After the marriage, the mother and the three children were sent to gitimate children Bolney. The parish of Shermandbury, before the marriage, allowed three under such cirshillings per week for three children; and the payment being discontinued after the marriage, on complaint of the parish of Bolney two justices made an order that Shermandbury should continue to pay the three shillings. The sessions, and afterwards B. R., confirmed the order of the justices. And the Court said, “This case is within the equity of the statute for the relief of the poor, and there is no reason that Shermandbury should be discharged of the children by their mother's marriage.” The inconvenience, when the two parishes are at a great distance from each other, is only similar to what is experienced on appeals brought on removals from parishes at a great distance. As to the method of enforcing the order, it may be done by indict-. ment, or perhaps the parish officers, in whose behalf it is made, might maintain a special action of assumpsit against those upon whom it was made. Vide Rex v. Toms, Dougl. 401. In Rann v. Green, 1 Coup. 474., the Court held, that when persons acting under a private act of parliament, make an order, by authority of such act, for the payment of money, the law

ference between bastards and le

cumstances.

3. Removal of children.

been removed to her maiden set.

maiden settle. ment of H.O. was in the ap

0. was born in

were several

which of them did not appear: Held, that as it was incumbent

the pauper was settled in the

the removal was

Secondly, raises an assumpsit, and the same rule must hold in the case of a public l'ho may be act (a). removed. Rex v. St. Mary, Beverley, 1 Barn & Adol. 201. Upon an appeal

against an order of removal whereby Harriet, the wife of William Owen, and

their children, were removed from the parish of St. Martin, in Bererley, to H. O., the wife of the parish of St. Mary, in Beverley, both in the East Riding of the county W. O., having of York, the sessions confirmed the order, subject to the opinion of this

Court on the following case:- The maiden settlement of Harriet, the wife of tlement, upon the William Owen, was in the parish of St. Mary, and both his children were hearing of an ap. born there. No proof was offered that William Owen had gained a settleorder of removal, ment in his own right; but, on the part of the respondents, Ann Rogers, the the respondents mother of William Owen, was called, and deposed, that she was the wife of proved that the

a serjeant in the 30th regiment of foot ; that she never heard or knew where

his place of settlement was; that about twenty-seven years since, whilst the pellant parish,

regiment was on the march, she was suddenly taken in labour upon a bag. and also that w. gage-waggon; that her son, William Owen, (the husband of Harriet Owen),

was born in the stable of an inn at Ipswich; that she never was in Ipswich the city of Ips. wich, where there before, nor had she ever been there since; that there were several parishes

in Ipswich, but that she did not know in which parish the stable was situate, parishes, but in

or to what it belonged; and that even if she was now in Ipswich, she could not point out the stable or inn where she was confined. No proof was given

of any other endeavour having been made on the part of the respondents to on the respond

ascertain the parish in which William Owen was born. At the time of ents to shew that making the order of removal, William Owen was living with his wife and

family in the parish of St. Martin, in Beverley. The husband, William parish to which Owen, gave his consent to the removal of his wife and family to the parish of

St. Mary, in Beverley, but no proof was given of any consent on the part of made, and as they had disprov

Harriet Owen to her removal. The question for the opinion of the Court ed that by shew- was, Whether, under the circumstances, Harriet Ouen and her children ing that the hus- could be legally removed to the place of her maiden settlement? After settlement in hearing Archbold in support of the order, and Coltman contra.Bayley, J., some parish in delivered the judgment of the Court. We are of opinion that both the orders Ipswich, the uses in this case ought to be quashed. To justify the confirmation of an order of have quashed the removal, it ought to appear upon the evidence adduced by the respondents, order of removal. that the party removed is settled in the parish to which the removal is

made; if that do not appear, and à fortiori, if the contrary appear, the removal cannot be supported. Now the evidence, in this case, does not prove that the person removed is settled in the parish of St. Mary, to which she is removed, but in one of the parishes in Ipswich. It is argued, however, that as the respondent's witness did not know in which of the parishes in Ipswich the settlement was, and had proved a maiden settlement in the appellant parish of the wife who was removed, the onus of proving in which of the parishes in Ipswich the husband was born, was upon the appellant parish, and that in the absence of such proof, a removal to the wife's maiden settlement was warrantable. We do not concur in this reasoning. Where the respondent's evidence makes out a maiden settlement, and contains nothing to shew that any subsequent settlement which would supersede the maiden settlement has been gained, that constitutes a primâ facie case, and the onus of proof that the pauper was not settled there, lies upon the appellants

, but not that of proving the precise place where the pauper was settled. It is enough to disprove, by clear evidence, the obligation of the appellant parish to maintain the pauper; and the question may be considered, for this purpose, as being in substance the same as if there were an issue to be tried between the two parishes, whether the pauper was settled in the parish of St. Mary, or not. None of the cases cited in argument go any thing like the length for which the respondents must contend. In Rex ý. Woodford, there was no proof of any settlement but the maiden settlement of the wife. The same was the case in Rex v. Harberton. In Rex v. Hensingham there was,

band had a birth

(a) See also Settlement by Birth, (ante, 277.)

3. Removal of

indeed, proof that the husband had told his wife that he was born in York- Secondly, shire, but what a man says as to the place of his birth, is not receivable in Who may be evidence to prove it; and a similar observation applies to the case of Rex v.

removed. Westerham, of which there is a note in Burn's Justice, tit. Poor. The only remaining case cited by the respondents, was that of Rex v. Eltham, children. where the husband was a Scotchman, and had no settlement of his own. I am not aware of any other case in favour of the respondents. Now what do these cases prove? They prove, at the utmost, that where there is no sufficient evidence of any seitlement in the husband, and where the only settlement as to which there is any, is the wife's maiden settlement, the wife may be removed to that settlement; but they do not bear upon the point where it appears upon the evidence, that there is a settlement in the husband. Upon the ground, therefore, that in this case it appears, upon the respondent's evidence, that the husband has a settlement in a parish at Ipswich, we are of opinion that a removal to the wife's maiden settlement cannot be supported, and that the order of sessions ought to be quashed. Order of sessions quashed.

Order of two Justices (a) upon the Church wardens and Overseers of Z. for Order of two

maintenance of a poor bastard Child settled in A., but residing with its justices for main. Mother in B. for nurture.

tard, &c. County of To the churchwardens and overseers of the poor of the parish of

in the county of Whereas, E. F., esquire, one of his Majesty's justices of the peace for the said county, did, on the complaint of the churchwarden and overseer of the poor of the parish of in the county of

issue a summons under his hand and seal, duted the

day of

instant, and directed to the churchwardens und overseers of the poor of the parish of in the said county of thereby requiring them, or some or one of them, to appear before him, and such other of his Majesty's justices of the peace for the said county of as should be at in

in the same county, this day at o'clock in the forenoon, to show cause why an order should not be then and there made, for the payment, by the sume churchwardens and overseers of the poor of the parish of of a weekly sum to the said churchwardens and overseers of the poor of the parish of

for the maintenance of G. H., a bastard, born in the said parish of and then resident in the said purish of

as a nurse child with his mother, S. T. And whereas the said summons was duly served on L. M., one of the overseers of the poor of the said parish of having appeared before us, O. P. and Q. R., esquires, two of his Majesty's justices of the peace for the said county of in pursuance of the before-mentioned summons for that purpose, hath not showed to us any sufficient cause why an order should not be made upon them, the said churchwardens and overseers of the poor of the said parish of to pay a weekly sum to the said churchwardens and overseers of the poor of the said parish of towards the maintenance of the said bastard child. And whereas the said S. T., in and by her voluntary examination, taken in writing and upon oath this day, by and before us, the said justices, in the presence and hearing of the said L. M., hath declared that she was delivered of the said G. H., in the said parish of who was born a bastard there, and is now of the

years, or thereabouts, that he, the said G, H., is now chargeable to the said purish of and that she, the said S. T., is not willing to part with her said child until he attains the age of seven years. Now, in consideration thereof, and on the complaint of the said churchwardens and overseers of the poor of the said parish of

we do hereby order the said churchwardens and overseers of the poor of the said parish of

or some of them, to pay to the said churchwardens and overseers of the poor of the said parish of the sum of

weekly, and every week, for and lowards the support and maintenance of the said G. H., until they shall be ordered according to law to forbear the said allowance or otherwise.

Given under our hands and seals at aforesaid, the day of one thousand eight hundred and

age of

(a) See Rex v. Hemlington, Cald. by two justices, except in cases of great 6. By 59 Geo. III. c. 12, s. 5, (ante, emergency, when one justice may order 178,9) an order of relief must be made relief for fourteen days only.

4. Removal of servants,

vant may be removed from the master.

female for bas

lution.

A female servant

Secondly, l'ho muy be

4. Of Removal of Serrants. removed.

It has already been observed, that the justices have no power, upon the complaint of the parish officers, to remove a servant from his master; be

cause that would be to dissolve the contract betwixt the master and his Whether the ser. servant, which can only be done upon the complaint of the master or servant.

Therefore, if a female servant happens to be pregnant, and the child is likely to be born a bastard, yet if her master is willing to keep her, the parish cannot remove her; whilst, on the other hand, the master, if he pleases, may complain to a justice of the peace, that she is less able to perform the service, and the justice (if he sees cause) may discharge her, and thereupon the parish officers, having obtained an order of two justices, may remove her.

Rex v. Bleworth, Burr. 302, 4. Where a servant who was hired for three years, on certain conditions,-Lord C. J. Lee, put an end to the argument on the contract, by saying, “ How could the justices remove him out of the service?” It appears that the man was actually in the service at the time of the removal. And the Court quashed the order.

In Farringdon v. Witty, 2 Salk. 527; 2 Bott, 295, it was determined, that excepting on complaint of the master a servant could not be removed from his master's service, although the parish officers did complain. See

Rex v. Brampton, infra. Discharging a Rer v. Marlborough, 12 Mod. 402; 2 Bott, 42. An order of removal tardy is a disso.

was made of a maid-servant, who, within her year of service, was pregnant of a bastard.— The Court. If one hire a maid for a year, and before the year's end she is got with child, she shall not for that be removed, but shall serve out her time. This, however, is good cause for discharge from her service; and after her discharge she might be removed.

Rex v. Inhabitants of Brampton, Cald. 11; 2 Bott. 444. Two justices may be discharg- removed Hannah Wrigħt from the parish of Ashover, in the county of Derby, ed by her master for being with

to the parish of Brampton, in the same county. The sessions, on appeal, child, and may confirm the order, and state the following case: The pauper, being legally then be removed settled at Brampton, hired herself to one Mr. Longsden, of Eyam, for a year,

and served under that hiring till within three weeks of the end of the year, when her master, discovering her to be with child, turned her away, and paid her her year's wages, and half-a-crown over; whereupon she went home to her father's, at Ashover, from whence she was removed as above stated. The pauper, on her examination in court, said, she was willing to have staid her year out if she might; but that it was not material to her whether she staid or went, as she had received her whole year's wages, and that she was not half gone with child when she left her service, and hoped she could have done the work of her place to the end of the year.—Lord Mansfield, C. J. The 8 & 9 W. III. c. 30, is an explanatory law, and must not be carried beyond the words by construction. It declares, that there must be a hiring for a year, and a continuance for a year, in that service, to gain a settlement. With respect to the hiring, in conformity to the nature and object of the act, the Court has been critical and exact; but service, from the nature of the thing, admits often of questions upon the circumstances, as whether the absence was with leave from sickness, &c. But these questions have always been brought to this point, Whether the contract was put an end to within the year? This cannot be done by the dismissiou of the servant, without good and sufficient cause. In the Rex v. Castlechurch, there was a discontinuance by agreement, and the contract therefore determined. In such case, the payment of the full wages, which might be mere benevolence, could make no difference. The question then is, Is this contract dissolved within the year? The answer depends upon this, Has the master done right or wrong in discharging his servant for this cause? I think he did not do wrong. The marginal note, cited from Viner, whatever degree of authority it may be entitled to, is well warranted in principle. If the master agrees to the contract going on, the overseers, it is true, shall not take her away because she is with child; but shall the master, therefore, be bound to keep her in his house ? To do so would be contra bones mores, and in a family

.

4. Removal of

of a child which

moved from her

his.

where there are young persons, both scandalous and dangerous. Where a Secondly, servant's absence is said to be purged, (which is an improper expression,) by Who may be receiving him again, the receiving only explains and shews the nature of

removed. the absence; the consequence of it, indeed, is, that such reception must generally be considered as amounting to a dispensation, and thereby subject servants. the master to the payment of the whole wages. But the effect of a positive act of the master, i.e., the dismission of his servant under a criminal charge, shall never be done away by an implication arising from the payment of his whole wages.-Willes, İ. This case differs from Rer v. Richmond, nor is it like Rex v. Islip, in Stra. 423, where the cause of the discharge of the servant by the master was not reasonable. Here, if the master had daughters, it would not be fit that he should keep such a servant, though I think he could not avail himself of the authority of a magistrate; the jurisdiction of the justices being confined to cases in husbandry.—Ashhurst, J., of the same opinion. Orders affirmed.

Rex v. Alveley, 3 East, 563. Order of removal of Jane Hinson, single A single woman woman, from Kinver to Alveley. The order stated, “ That Jane is with serving a master child, and is therefore deemed chargeable to K., and the justices upon proof, of hiring and ser&c. &c." did adjudge the same to be true, &c. &c., proceeded to adjudge vice, cannot,

though pregnant the settlement. Order confirmed. Case: The pauper was settled in Alveley, and some time previous to Michaelmas, 1801, hired herself for a year to E. Č., will be born a of K., for a year. She entered and served till September 2nd, 1802, when, bastard, be reshe being about seven months gone with child, the parish officers of K. service, against insisted upon her going before two magistrates, for the purpose of being her consent and examined as to the place of her settlement, and accordingly took her away from her service on the evening of that day, and the next morning brought her before the magistrates, who made the order of removal. The pauper's master had made no complaints against her, he did not consent to her being taken away, but objected to it, as did the pauper herself, who was perfectly able to do her work. After her examination had been taken, she returned to her master's service, and on the following day the parish officers removel her, under the order, from Kinver to A., telling her at the same time, that she might retum to Kinver.-Lord Ellenborough, C. J. If the order of removal were good, no doubt it would operate to dissolve the contract. In Rex v. Kenilworth, the order of removal being unappealed from, was deemed valid; but this is now under appeal, and may be controverted. And that brings it to the question, Whether the order was properly made? Was it not the meaning of the act to prevent the removal of persons until actually chargeable, who were before removable, if likely to become so ; but not to make persons removable who were not proper objects of removal before that act? Could it be meant that a person in this situation should be torn away from her parents, whatever her condition in life may be, and however far removed from any probability of being a charge on the parish? Is there any instance to be found in the books before this act, of a woman, under these circumstances, being a person of substance, and yet deemed to be removable? The substance of a person so situated, repels the idea of her being chargeable; and the act did not mean to make any one removable who was not so antecedently to the passing of the act. The general provision is, that no person shall be removable till actually chargeable; and the 6th section introduces an exception to that general rule, leaving the person, so circumstanced, to the operation of the law, as it stood before the passing of the act. [The respondent's counsel observed, that there were no facts stated in the case to shew that the woman was not a person who was likely to become chargeable at the time of the order made, or that the removing magistrates had not exercised their judgment upon that fact; on the contrary, they adjudge her to be chargeable, and before the act in question, such a person was removable.]—Lord Ellenborough, C. J. There is nothing of that sort stated in the case, nor any thing in the order itself to shew that the magistrales adjudged her to be chargeable, otherwise than as a consequence of law in their understanding of the act of parliament; they adjudge that she is with child,“ and is therefore deemed chargeable to the parish of Kinver.” But though the act says, that such a person shall be *s deemed and taken to be actually chargeable ;" yet that must be under

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