Page images
PDF
EPUB

cate from a benefit society.

But in respect to persons residing in any parish by virtue of Bastards born stat. 33 Geo. 3. c. 54*. under a certificate from a benefit so. under a cert.ficiety, acknowledging them to be members thereof, and who, during the time they so continue members, are not removeable from the parish where such certificate shall be delivered, until they become actually chargeable; it is by the same statute ENACTED, That every child which shall be born a bastard in any parish, township or place, during the mother's residence therein, under the authority of that act, shall have the same settlement which the mother has, at the time of the birth of such child. 33 Geo. 3. c. 54. s. 25.

with the

But although the place of birth be the settlement of a bastard, Bastards under yet while under seven years of age it cannot be removed, but seven years, shall continue with the mother for nurture at the place of her may be sent settlement; for in the case of Skeffeth v. Walford, Mich. 3Geo. 2. two justices made an order to remove a woman and her child, place of setand by that order sent the child, being two years old, to the tiement for place of its birth, at a distance from the mother. To this order nurture.

it was objected, that the child being a nurse child, they cannot separate it from the mother by reason of the care necessary to Burture so very young a child, which none can be supposed so fit to administer as the mother of it ; and therefore it should havo been sent with her to the place of her settlement +.-The order was quashed. 2 Sess. Cas. 89.

And though the child being under seven years, and continuing with the mother for nurture, cannot be removed to the place of its birth, yet the parish in which it is settled, shall maintain it in the place where the mother lives and is settled; this was de. termined in the case of the K. v. Hemlington‡, Hil. 17 Geo. 3. A woman went with a certificate from Hemlington to Darling. ton, in which last place she had two bastard children, and there became chargeable; an order being thereupon made for the re.) moval of her to Hemlington, she took the two children who were born in Darlington with her, being both under the age of seven years. Two justices made an order upon the township of Darlington for the maintenance of the two children born in that township. Darlington appealed against the order of main. tenance,and the sessions being of opinion that Darlington was not liable, quashed the said order. But the proceedings being removed into the court of King's Bench, THE COURT were of opinion, that Darlington was obliged to maintain the two children' at Hemlington, while residing there with their mother as nurse, children; and therefore quashed the order of sessions, and affirmed the order of the two justices. 1 Doug. 8vo. ed. 9, 10. Caldecot's Cas. 6.

See this statute under title FRIfndly Societies, in vol. ii.

+ But if the mother should desert the child, this reason ceases: aud it must, from the necessity of the case, be sent to the place where it was born.

See this case very fully stated in vol. j. p. 335.

mother to her

Order of maintenance not

conclusive as

But an order made upon the overseers of a parish by two justices, for the maintenance of a bastard, does not determine the to the settle settlement of the bastard to be in that parish, for the right of settlement is not contested, but presumed. Q. v. Budworth, Hil. 5 Ann. Salkeld, 123.

ment of a bastard.

ii.

For the filiation and maintenance of bastards, see the title BASTARDY.

The settlement by birth of legitimate children.

How far legiti- It is agreed that a legitimate child gains no settlement by its mate children birth, when the place of the parent's last legal settlement is settled where known; but that such child must follow the settlement of the parent. Curther, 433.

born.

But where the place of the parent's last legal settlement is not known, the place of the child's birth is prima facie the place of its settlement until a settlement by parentage or otherwise can be found out: thus in the case of Cripplegate v. St. Saviour's, Hil. 8 Ann.-A child of three years of age was removed from the parish of Cripplegate to the parish of St. Saviour's, in the Borough of Southwark, and it appeared in the order that the justices had removed him to St. Saviour's, as to the place of its birth.-BY THE COURT. The father's scttlement is the settlement of his legitimate children when it can be found out; otherwise the place where a child is born is, prima facie, the settlement of the child until there is another settlement found out. So a bastard's settlement is the place of its birth, because it is nullius filius. If a child be dropped in a parish, the parish officers may remove him to the place of his birth, or to the place of the father's settlement. The settlement by birth is only until they find the father's settlement; and if they never find it, it is absolute upon them; and the order was confirmed. Foley, 265.

Therefore on a question respecting the settlement of a person, if the appellants prove the place of birth, this is proving a primary place of settlement, and sufficient to throw the burthen of proving a different place of settlement by parentage or otherwise upon the respondents.-The K. v. Woodford, Hil. 23 Geo.3. and the K. v. Whixley, Hil. 26 Geo. 3. 2 Bott, Const's ed. 16, 17. K. v. Heaton Norris, Ea. Ter. 36 Geo. 3. 6 Ter. Rep. 653.

And the primary settlement by birth, may be vacated by the parent's gaining a new settlement; for in the case of Cunmer v. Milton, Mic. 2 Ann.-A child was born at Cummer; the father, while the child was under seven years of age, removes to, and gains a settlement in Milton, and this was held a settlement for the child, 6 Mod. Rep. 87.

iii. How the settlement by birth, may be proved.

The parish register is only a proof of the christening, and not of the birth, which is very frequently in a different place; it

is therefore necessary to require other proof of that fact, and also of the identity of the person; but what shall be deemed sufficient evidence in this respect, must depend on circumstances; and it is a general rule that the best evidence that the nature of the thing is capable of must be given.

Thus in the case of the K. v. Creech St. Michael's, Ea. 14 Geo.3.-Six children were removed, by an order of two justices, from Creech St. Michael to Pilminster, as to the parish where their father was born. Upon hearing the appeal (the father, who was mentioned in the order, being run away), in order to prove his birth in the parish of Pilminster, the following copy of a register was produced, taken from the parish-register of Pilminster; "Christenings 1775, John, son of John Every "and Mary his wife, baptized December 5." It was also proved, by vivá voce testimony, that the John Every who lived in Pilminster, and died long ago, was considered as the pauper's father, and that a Mary Every who lived in Pilminster, was understood to be the pauper's mother, and that he had been heard to call her mother. The sessions thought this was not sufficient evidence to prove the birth, and to identify the person of the father of these children, as better evidence might have been adduced for that purpose, and therefore discharged the order of the two justices.-But, on this order being removed, lord Mansfield seemed to think the evidence sufficient; and on cause being shewn, the order of sessions was quashed, and the original order was affirmed. Burrow's Sett. Cas. 765.

And the reputed parents may be called as witnesses to prove the illegitimacy of their children-Thus in the case of the K. v. St Peter's in Worcestershire, Ea. 8 Geo. 2.-A BASTARD was removed from St. Peter's to Old Swinford as to the place of its birth. It appeared on the evidence of the father of this child, that he and its mother had travelled together as wandering per. sons from place to place for about fifteen weeks, and during all that time had cohabited and lain together as man and wife; that during this cohabitation, which continued till the mother's death, the child was born in the parish of Old Swinford; that the marriage of the parties had never been questioned during her life; and that this child, among other children which they had, were baptized as the legitimate children of the said father and mother. There being no other evidence than the father, the sessions conceived that it was not sufficient to support the order so as to bastardize the infant removed. But by lord Hardwicke Ch. J. It is an apparent fact that this man and woman were never married, and the evidence of the man is admis. sible to prove this fact. He doth not swear to discharge himself; for whether he be the legitimate, or only the natural father of the child, he is equally bound to maintain it. The child, therefore, is a bastard, and must be settled where born. Bur Tom's Sett. Cas. 25.

So in the K. v. the Inhabitants of Bramley, Tr. Term, 35 Geo, 3. two justices by an order removed Sarah Ward, widow

Legitimate

children have

the parish set

tlement.

Children dropped.

Child born an idcot.

of James Ward, deceased, and her three children, from Leeds
to Bramley. Against this order the latter parish appealed to the
sessions. On the hearing of the appeal, the respondents pro-
duced evidence of the settlement of James Ward being at Bram-
ley; and, in order to prove the marriage of the said James
Ward with the said Sarah Ward, they produced witnesses who
proved that they had cohabited and lived together as man and
wife, and were reputed to be man and wife until the death of
James Ward. The appellants offered to produce Sarah Ward,
as a witness to prove that she never was married, or that, if
she ever was, the ceremony took place in Ireland, under such
circumstances as (the appellants contended) by the laws of Ire-
land rendered it wholly void. They also offered witnesses to
prove declarations made both by James Ward and Sarah Ward,
at different times, that they never were married.
The respon
dents insisted that the evidence offered by the appellants was in-
admissible; and the sessions being of that opinion rejected the
same, and confirmed the order of the two justices, subject to the
opinion of the court of King's Bench, whether the evidence of-
fered by the appellants was admissible or not?-By lord Kenyon
Ch. J. This evidence was certainly admissible, though the jus-
tices at the sessions were to judge of the effect of it: in the case
of the K. v. the Inhabitants of St. Peter's (see p. 11 supra), it
was expressly held that the supposed husband was a competent
witness to disprove the marriage. There are also many other
cases in which it has been decided, that the parents may be
called as witnesses with respect to THE LEGITIMACY of their is-
sue; and if they may be called to prove that they are legiti
mate children, there is no reason why they should be consi-
dered as incompetent when called to prove that the children
are illegitimate.' But in all these cases such testimony is open
to great observation. Case sent back to sessions. 6 Term Rep.

330.

II. Settlement by parentage.

The place where legitimate children are born is not the place of their settlement, as has been before observed *, unless the settlement of their parents is unknown; for if the settlement of the parents be known, there the children are settled, let the birth be where it will. 3 Salkeld, 259. Fortescue, 313. Foley, 262. 1 Sess. Cas. 18. Comberbach, 380.

Therefore a legitimate child, born, or dropped, in a place where a person is vagrant, gains no settlement by being dropped, but where the father was last legally settled. Fortescue,

313..

So the father of an ideot ought to maintain him, and if he cannot, the parish or place where his father is settled must; for there is no difference to be made in this respect between an ideot

See p. 10 supra.

and any other poor child. Salkeld, 427.

Hard's Case, Mic. 8 Will. 3, 2.

And though the father die before the child is born, yet the Child born af child shall be settled where the father was settled before his ter death of the father. death. Q.v. Clifton, Mic. 5 Ann. 19 Viner, 382.

time.

Also in the case of St. Giles, Reading, v. Eversley Blackwa- Children born ter, Hil. 10 Geo. 1.-It was held that though the place of the in father's lifebirth of a poor child, when the father has got no settlement, is the place of the settlement of the child; yet where the father has gained a settlement, his children, though born in another parish, shall be looked on as settled at the place of their father's last legal settlement, and shall be removed thither, as well ' after the death of their father,' if occasion require, as in his life-time, supposing they have gained no settlement of their own. 1 Strange, 510. 2 Ld. Raym. 1332.

So in the K. v. Luckington, Tr. 8 Will. 3.--A man and his wife weresettled in the parish of Luckington, and came to St. Austin's, and there a legitimate child was born. The father went abroad, and died in the king's service; the mother returned to Luckington, and there died: the question was, Who should keep the child?-And it was contended that they could not send it to the father when he was dead; and the parish of Luckington had no right to keep the child, except only as a consequence of the father's settlement, which failed when he was dead.-But by Holt Ch. J. The death of the father does not alter the child's settlement. Comberbach, 380.

And the father's settlement communicated to his children is not changed by the marriage of his widow; thus in Wangford v. Brandon, Éa. 10 Will. 3.-Three poor men of Wangford came into Brandon, and there married with three poor widows of that parish; each of whom had children by their former husbands, some under and others above seven years of age. It was holden by Holl, Ch, J. that the children were not re. movable into the parish of Wangford to charge that parish by settling them there; but as to the nurse children, under the age of seven years, they might be sent thither with their mothers for nurture, but still the parish of Brandon must relieve them there, and not the parish of Wangford. And as to the other children, above the age of seven years, they ought not to he removed at all, being settled inhabitants in the parish of Brandon, and the removal of their mothers shall have no influence on the settlement of their children. Carther, 419. 2 Salk. 482. Burrow's Sett. Cas. 3.

So in the K. v. Saxmundham, 12 Will. 3.-It was buld that a child of a former husband, though but a year old, when a woman is married to a second husband, cannot gain a settle. meat in the parish where she goes with such second husband, but shall only go there for nurture, and he maintained by the parish where the child's father had a settlement. * Fortescue,

So also in the Q v. Cumner, Tr 1 Ann.-Powell, J. said, that if a widow having children under seven years of age, marry a second

« PreviousContinue »