307. 2 Bott, Const's. ed 20. And recognized as law in Culdecot's Rep. 10.

And upon this principle, the children of a first husband, if the place of his settlement is unknown, shall go to the place where the mother was last legally settled in her own right, and not to the place of her second husband's settlement; for in the K. v. St. Giles' in the Fields, Tr. 6 & 7 Geo. 2.— Jacob Baile, the pauper, was an infant of nine years of age, his father's settlement was not known. His mother, before her marriage had acquired a settlement; his father died: his mother married a second husband, and she thereby gained a new settlement by this second marriage.-BY THE COURT. Jacob Baile's settlement is where his mother was last settled before her marriage with his father; the new gained settlement of his mother not being gained in her own right, but only in right of her second husband. Burr. Set. Cas, 2.

And if the sessions decide in favour of a settlement in the parish by which the pauper's father was proved to have been "at different times relieved, while resident in another parish," 40 years ago and before the pauper's birth; and if the only evidence to oppose this be that of the pauper's own birth in another parish, the court will confirm the order of sessions. BY THE COURT, the place of birth is no more than prima facie evidence of a settlement, and the weakest evidence of settlement; and where there is prima facie evidence on both sides as in this case, the sessions must decide on it-Orders confirmed. K. v. Wakefield, Tr. Ter. 44 Geo. 3. 5 East's Rep. 335. 1 Smith's Rep. 512. If the father remove into a different parish, and there gain a new settlement, his children under the age of seven years, and such other of them as have not gained settlements in their own right, shall have the settlement thus newly acquired; for while a legitimate child continues part of his father's family, it shall follow its father's settlement; thus, in the Q. v. Cumner, Tr. 1 Ann.-A man settled at Cumner had several children born there; afterwards he removed to, and gained a settlement at

husband of another parish, they shall go with her for nurture, but shall not gain a settlement there, and shall return when they are seven years old; for she cannot gain a settlement for them, being under coverture, and she only gains a settlement for herself, as being part of her husband's family. Salkeld, 528.

So in the K. v. Woodend, Hil. 13 Geo. 1.-It was said, that if after the husband's death the wife shall marry again to a man settled in another parish, her children by a former husband must go with her for nurture; yet they are no part of her second husband's family, and therefore gain no settlement thereby in the parish where the father-in-law is settled. 2 Ld. Raym. 1473.

Also in the case of the K. v. St. Giles' in the Fields, above, Tr. 6 & 7 Geo. 2. it was agreed that when children are sent with their mother for nurture, they are to be supported at the expence of the parish where their legal settlement is. Burrow's Sett. Cas. 2.

Milton; and becoming poor, his children under the age of seven years were sent back to Cumner.-Powell J. held, that when a child is sent with the parents for nurture only, it gains no settlement; but here the children did not come to Milton by order; and the children's settlement shall not be divided from the father, for that would be unnatural. That when a man gains a settlement for himself, his wife and servants, he shall likewise gain one for his children also. To this opinion Holt Ch. J. agreed and it was determined, that the subsequent settlement of the father at Milton was the settlement of his children. Salkeld, 528.

So in the K. v. Souton, Mich. 12 Geo. 2, the father, hav ing a settlement at Souton, where his child resided, went to Silbury, and resided forty days upon his own estate, going occasionally from thence to Souton, where his child continued to reside until it became chargeable. And one question was, Whether, as the child had never been at Silbury, it should follow the father's new settlement at Silbury, or be settled at its former settlement at Souton ?-Lee Ch. J. In the case of Eversley Blackwater, the court were of opinion, that a child might be sent to the settlement of his father, though it had never been there before, contrary to an opinion of Parker in a former case. The true distinction, I think, is, that "where chil"dren have gained no settlement, but continue part of the "father's family, they should follow the father's settlement." 2 Sess. Cas. 150.

So in the case of Harrow v. Edgeware, Ea. 11 Ann.—A man had gained a settlement in the parish of Harrow by HIR ING AND SERVICE. Some time afterwards he removed into the parish of Edgeware, where he married, and was admitted into a copyhold estate for life worth twenty-five shillings a year, which he purchased and lived in for four or five years, and died. His widow was admitted to the estate, and enjoyed it during her life. On her death she left three children, who, being likely to become chargeable to the parish of Edgeware, were removed by an order of two justices from Edgeware to Harrow. -By Parker Ch. J. Where a man has an estate for life, or an estate of inheritance of his own, that gains him a settlement, though of less than ten pounds a year; for he cannot be removed, and if he cannot be removed, he certainly gains a set. tlement; and the continuance of his children with him, must "give the children a settlement." I agree that the settlement of the father is not absolutely necessary to the settlement of the children, but it is until another settlement does appear: in this case, however, the only dispute is, Whether the father's settlement was at Harrow or at Edgeware? I am of opinion, that he was settled at Edgeware, for he could not be removed from thence; and if he could not, neither could his children; so that I take the settlement of these children to be at Edgeware. -Powell, Powis, and Eyre Justices, being of the same opiBion, order quashed. Foley, 257.

incumbent on

that parish, to prove a subsequent settle

quent.

The primary And if nurse children be removed to a place, as their father's settlement of primary settlement, it is incumbent on the parish to which they the parent heare removed, upon an appeal against the order of removal, to ing proved in a parish to which shew that their derivative settlement has been changed by a the children are new settlement, subsequently acquired by the father; thus in removed, it is the case of the K. v. Bucklebury, Ea. 26 Geo. 3, two justices removed three paupers all under seven years of age, from Bucklebury to Bradfield, by an order of removal, setting forth their several ages, and adjudging, upon the evidence of their grandmother, that their lawful settlement was at Bradfield, without stating either the death or settlement of their parents. The sessions on the appeal quashed the order of removal, and stated the following case: The paternal grandfather of the paupers, was at the time of his death settled in Bradfield. He left several children by his wife Elizabeth Knott, and amongst others Charles Knott, the father of the pauper's; Charles Knott went to Twickenham in 1777, and married Sarah Slade, who dying in 1784, he brought the three paupers to Elizabeth Knott his mother, then living, in order to take care of them, he engaging to pay for their maintenance. Charles Knott not sending money sufficient for their maintenance, and Elizabeth Knott,who had herself received parish relief, being unable to maintain them, they were removed by the order to Bradfield. The parish of Bradfield appealed; but Charles Knott having absconded, and not being to be found, it was proved by the respondents, that the paternal grandfather had his settlement at the time of his death in Bradfield, and that Charles Knott his son was born in Bradfield. They produced the register of the marriage of Charles Knott with Sarah Slade, and also the baptisms of the several paupers; but Charles Knott, not being present to give evidence, it did not appear whether he had acquired any settlement or not, subsequent to his derivative settlement; nor was any evidence given to identify the persons named in the order, and delivered to Elizabeth Knott by Charles Knott as the legitimate children of the said Charles and Sarah Knott, except as aforesaid.-In support of the order of sessions, it was contended, that the order of removal was informal on the face of it. That "the 66 paupers appearing to be nurse children, ought not to have "been removed without their father or mother, unless the order "had stated that the parents were dead." That it should have stated that Bradfield was the last legal settlement of the father, and by consequence the settlement of the children,Another objection was, that it was grounded on the "examina. tion of the grandmother, and not on that of the father; and that when this appeal came before the sessions, the father did not appear, neither was there any other evidence but that of the grandmother to prove either the identity of these children, or that the father had not gained a subsequent settlement; but THE COURT were clearly of opinion, that there wes no objection to the competency of this evidence. And as to the

* See the case of the K. v. Creech, in p. 11 supra.

other point; that it was incumbent on the parish of Brad"field to have shewn that the father had gained a subsequent "settlement." Order of sessions quashed. Original order confirmed. 1 Term Rep. 164.

And proof of the father's settlement is sufficient to establish the settlement of his child in the same parish, if nothing appear to contradict it.---Thus in the K. v. the Inhabitants of Stone, Mic. Ter. 35 Geo. 3, two justices removed Mary the wife of Thomas Davenport, and Mary her infant daughter, from Stone to Lighford. Upon appeal, the sessions quashed the order, stating that Thomas had left his wife and family for three quarters of a year, during which time his wife had not heard of him; Dor had be since been at Stone or Leighford: that the settle. ment of l'homas's father was in Leighford, but Thomas himself was not born there, and it did not appear that he had ever gained a settlement in his own right. The justices further stated, that the order of removal had been made without any examination of the husband of the pauper Mary, and that they were of opinion that due diligence had not been used by the respondents to find him out.-Lord Kenyon Ch. J. said, there was nothing in the case: that the evidence produced was legal evidence, and, if not contradicted, sufficient to establish the settlement in Leighford: but that th: sessions seemed to have thought it indispensably necessary to procure further evidence, in which they were mistaken.-Order of sessions quashed. 6 Term Rep. 56.

Though a person become attainted, yet the settlement which that person may have acquired before the attainder, is commuBicated to sach of his children as may be born afterwards. This was decided in the K. v. the Inhabitants of St. Mary, Cardigan, Mic. Ter. 35 Geo. 3, which was as follows:-Two jusfices removed a woman and three children from the parish of St. Mary in Cardigan to the parish of Llanvihangel Ys:rad;

appeal, the sessions quashed the order, subject to the opinien of the court on the following case:-The husband of the pauper gained a legal settlement in the parish of Llanvihangel Yared in 1767; he was afterwards tried for sheep stealing, and was convicted, and had sentence of death passed upon him Cargas spring sessions, in the year 1770, but escaped from gaol fore the time appointed for his execution. Two years af. terwards he returned to Cardigan, and continued to live there

the year 1792, and during that time married a wife, by whom he had two sons, and on her deccase he married an sther woman, by whom he had a daughter. In the said year 592 he agam absconded, whereby his wife and the aforesaid ree children became chargehule to the parish of St. Mary in digen. It was contended in support of the order of sesms, that the attainder of the husband had destroyed all his ghts, and among them the right of afterwards communicating settement to his wife and children, which is a civil priviVOL. IV. C

If the father has no settle

mother's.

--

lege. By lord Kenyon Ch. J. This is a new case in the law of settlements, but I cannot bring my mind to doubt about it. A settlement is not the property of any man; it cannot escheat: neither can it be called a franchise; in the case of a franchise it has been rightly decided, that by attainder the franchise is lost; but this person was before his attainder settled in the parish to which the paupers were removed, and I think the father's 'settlement was communicated to them,' and that the justices at the sessions were mistaken*.---By the Court, Order of sessions quashed. 6 Term Rep. 116.

482

As a legitimate child has a right to his parent's settlement, ment the child the father's shall take effect first; but where the father ha must go to the none, the child must go to its mother's settlement; for in such case, if the mother's settlement can be found, the child shal have the benefit of it. Burrow's Sett. Cas. 2. 367. Fortescue, 314. 2 Sess. Cas. 112, 113. Foley, 251, 252. Thus in the K. v. St. Botolph's, Hil. 28 Geo. 2.-A woma settled in St. Botolph's married an Irish sailor who had no se tlement; and the sessions removed her and her child to S Botolph as the place of her last legal settlement...BY THE COUR a legitimate child has a right to its parents' settlement. T father's settlement shall take effect first; but in cases like th where the father has none, the child must go to its mother settlement, and not merely for nurture. Burrow's Sett. Ce 367.

So in the K. v. St. Paul, Shadwell, Tr. 9 Geo. 1.-It w ruled by Eyre and Fortescue, that the children should have t benefit of the mother's settlement where the father, being foreigner, had none himself, for that her right should be tra ferred to them, and that under such circumstances they sho not be sent to the place of their birth. 2 Bott, Const's

32.

So also in the case of the K. v. Westerham, a woman marr an Englishman, whose settlement was unknown, married, ha child and ran away. Her child was then nine years of age. THE COURT. This woman and her child ought to be set where her settlement was before marriage. Foley, 288.

So also in Tynton v. King's Norton, 13 Geo. 1.-The tlement of a pauper's mother was at Worthling in Sulop: married a Scotchman, who was a hawker and pedlar, and n gained any settlement in England, and during the time the father and mother were travelling up and down selling t goods, the pauper was born at King's Norton; it was insis that the pauper was a vagrant, and settled at the place of -But the justices of assize were clearly of opinion, that pauper was settled at Worthling, and said, If the mother a settlement the child is no vagrant. 2 Bott, Const's ed. 3

* Lord Kenyon added, that it would be a doubt whether the himself could gain a settlement after the attainder.