proved, either by the man himself, or by his real wife; for, said the court upon one occasion, "the woman was clearly an admissible witness, though she could not have been so in any case where her husband was a party, because the husband and wife are, in law, one person. But here the husband himself, if he had been alive, might have been a witness; and wherever the husband may be witness, the wife may"(m). The burden of proof of the death at a particular time lies on those who assert it, and the presumption of life seems to remain till excluded by strong circumstances, as the party not having been heard of for seven years, being in danger when last heard of, &c. (n). On the words of st. 1 J. I. c. 11, "the former husband, or wife, being alive," it is enough to observe, that three exceptions were made by subsequent clauses of the statute, which are, 1. Where one of the parties shall continue beyond the seas for seven years together; or, 2. Being within the kingdom for seven years together, shall be so secreted, that one party shall not know whether the other is alive; and 3. Of persons whose former marriage is void ab initio, or rendered so by sentence of a court of competent jurisdiction. These exceptions, however, apply only to the trial of polygamy as a crime; their consequence, as affecting settlements, present views of the subject somewhat different, but which have been already sufficiently considered, in what has been advanced respecting non-access in questions of bastardy, and in the consideration of evidence. The offence of polygamy committed on or after 1st July, 1828, stands on a widely different footing. By 9 G. IV. c. 31, s. 22, if any person being married, shall marry any other person during the life of the former husband or wife (whether the second marriage shall have taken place in England or elsewhere) every such offender and person counselling, aiding, or abetting such offender shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas for seven years, or to imprisonment with or without hard labour, in the common gaol or house of correction, for not exceeding two years. Provided that nothing herein contained shall extend to any second marriage contracted out of England by any other than a subject of his majesty, or to any person marrying a second time, whose husband or wife shall have been continually absent from such person (m) 2 Bott, 81. (n) R. v. Harborne (Inh.), 2 Ad. & E. 540; 4 Nev. & M. 341, S. C.; Doe d. Knight v. Nepean, 5 B. & Adol. 86; for seven years then last past, and shall not have been known by such person to be living within that time; or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of the first marriage, or to any person whose former marriage shall have been declared void by sentence of any court of competent jurisdiction. The offender may be tried in any county where he is in custody. When the Inquiry is excluded.]-The fact of marriage cannot be inquired into after an order of removal or a certificate, stating the parties to be husband and wife, if such an order be not appealed against in regular course; for the time being past for taking advantage of the fact, even though it were not then discovered, the parties who are not damnified must abide by the consequences, and are estopped after (o). Woman's Settlement, when not suspended during Coverture.]—The last point necessary to be noticed under this division, is one which was long controverted (p), viz. whether the settlement of a woman marrying a man, whose settlement is not known, is suspended during coverture, and revives after his decease; or whether it continues during coverture; and also as to the mode of proceeding upon an appeal under these circumstances. The following case is selected from many, as presenting the best illustration of the point as now settled. A widow and her children were removed from Woodsford to Winborne Minster. The session, on appeal, adjudged the settlement to be at Woodsford, and quashed the order, stating, that by a rule of the Dorsetshire sessions, the appellants begin, and in the first place show some settlement of the pauper out of the parish appealing. That in pursuance of that rule, appellants produced a copy of the register of the birth of Mary Scutt, in A.; and the pauper, Mary Pitman, swore that Mary Scutt was her maiden name. The counsel for the respondents objected, that this was not sufficient; but that the birth, or some other settlement of the pauper's husband, ought to have been shown; and further, that to identify the said Mary Scutt, it was necessary for the appellants to prove her marriage with Robert Pitman. The session adjudged, that the proof of the birth of Mary Scutt was sufficient; that the onus probandi of the marriage lay upon (0) Burr. S. C. 551; R. v. Ullesthorpe, 8 T. R. 465. (p) Burr. S. C. 367; Cald. 39, 371; 2 Bott, 86. the respondents; and quashed the order of removal. It was moved to quash the order of session, upon the ground that the pauper having been removed in the character of a widow, it imported, that it was a removal to the place of her late husband's settlement: that, unappealed from, it would be conclusive evidence of his settlement; and that as this must consequently have been the only point meant to have been brought in issue between the parties, the maiden settlement of the woman was nothing to the purpose, and did not apply to the question before the court. But by the court, "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. Motion denied" (q). In a later case it was decided, that an order of justices for removing the wife and children of a pauper to the place of their settlement, is supported prima facie by showing that the parish to which the removal was made was the place of the wife's maiden settlement; and although it also appeared by the marriage register, that the husband was "of another parish," such description was holden no evidence of his being settled there; and the burden was cast on the appellants of showing the husband settled in another parish (r). But where the wife of W. O. was removed to her maiden settlement, which appeared to be in the appellant parish; but it also appeared that the husband was born in the stable of an inn in Ipswich, during the march of a regiment to which his father belonged through that town, it was held that the removal was mistaken, as the husband was shown to have had a birth settlement somewhere, though it was not proved in which of the several parishes in Ipswich he was born (s). Evidence of Marriage.]-Though the readiest proof of a marriage in England and Wales, is by producing an examined copy of the entry in the parish, or dissenters' registers, it is not necessary; and other evidence, e. g. that of a party present when the ceremony took place, will suffice (t). Though the preliminaries of a legal marriage need not be proved in support of it, the other side may show that they never took place, e. g. that banns never were published (u). A mar (q) R. v. Woodsford, Cald. 236; and see R. v. Ryton, Cald. 39; St. John's, Wapping, and St. Botolph's, Bishopsgate, Burr. S. C. 367, S. P. (r) R. v. Harberton (Inh.), 13 East, R. 311. (s) R. v. St. Mary, Beverley, 1 B. & Adol. 201. (t) St. Devereux v. Much Dew Church, 1 Bla. R. 367. (u) Standen v. Standen, Peake, C. N. P. 32. See 3 G. IV. c. 75, s. 19. riage by banns, in names by which, though assumed, the party had been known in the same parish during three years' residence there, was held good for the purpose of conferring a settlement (z). So where the party had lodged in the parish for sixteen weeks before, passing by a name which he had assumed on account of having deserted from the army, and married by that name; for it was not assumed to impose on the woman (y). The like was held where a widow married again by banns published in her maiden name, by which, notwithstanding her first marriage, she had long been known (z). For, to annul a marriage on this account, the name must be assumed fraudulently; and the mere fact that some one individual may be deceived, is not sufficient, e. g. by accidental addition or omission of one of several Christian names, or by its partial variation (a). But where a woman named H. was married by banns in the name of White, that being her name, as entered by mistake in her baptismal register, her marriage was held void for the purpose of obtaining a settlement, as she had never been known by the name of White (b). SECTION VI. OF SETTLEMENT BY APPRENTICESHIP. By stat. 3 & 4 W. & M. c. 11, s. 8, if any person shall be bound an apprentice by indenture, according to law, viz. for seven years (c), and inhabit in any town or parish, such binding and inhabiting (d) shall be adjudged a good settlement. Apprenticeship appears to be the earliest mode recognized by law by which an adventitious or personal settlement can be acquired. It has been already observed that seven years is fixed as the limit of the age of nurture (e); and by an act of Elizabeth (ƒ), the children of the poor, (x) R. v. Billinghurst, 3 M. & S. 250. (y) R. v. Burton-on-Trent, 3 M. & S. 537. (z) R. v. St. Faith's, Newton, 3 D. & R. 348. (a) Ibid. See cases collected, 1 B. & Adol. 190. (b) R. v. Tibshelf (Inh.), 1 B. & Adol. 190, a case of great hardship; for fraud in putting up the banns was negatived, and no one was deceived as to the retrospective effect of 3 G. IV. c. 75, s. 2, on marriages by license. See Poole v. Poole, 1 Tyr. R. 76; 2 C. & J. 66; and 1 Younge, 331, S. C.; R. v. Waulley, 1 Mood. C. C. 163; R. v. St. John Delpike (Inh.), 2 B. & Adol. 226. (c) 5 El. c. 4, s. 26, 31, 41. See Reg. v. Barmston (Inh.), 7 Ad. & E. 858; 3 Nev. & P. 167, S. C. (d) R. v. Linkinhorne, 3 B. & Adol. 418; 6 Ad. & E. 140; Reg. v. Burslem, 11 Ad. & E. 52; 3 P. & D. 38, S. C. (e) See Wangford v. Brandon, Carth. 449; 2 Salk. 482; and 1 Burn's Jus. 28th ed. tit. Apprentices, Sect. II. See ante, Sect. 4 of this Chapter. (f) 43 El. c. 2, s. 5. on attaining that age, might even be compelled to go into apprenticeship by the officers of the parish in which they are settled, though not resident in or a burden to it (g). However, by a later act, indentures of apprenticeship to a chimney-sweeper are made void if the unhappy sufferer under them is a boy under eight years old (h); and it has been since provided (i) that no child can be bound apprentice by parish officers till the age of nine. By an earlier act of Elizabeth (j), the qualifications of persons entitled to take and to become apprentices had been regulated. The changes of time and the progress of commerce having made many of its provisions inconvenient, caused its penalties and restrictions to fall into a disuse, from which they were only occasionally revived for the purposes of vexation. They were therefore repealed (k); and all power specially given to justices over apprenticeships contracted subject to the repealed act of 5 Eliz. c. 4, is still reserved to the justices generally (l). No settlement can be now acquired by apprenticeship to the seaservice, or to a householder exercising the trade of the seas as a fisherman or otherwise, or by any person who at the passing of this act (14) August, 1834) was such an apprentice, in respect of such apprenticeship (m). The contract itself, by which the relation of master and apprentice is formed; the residence under it, and the effects of that residence ; its premature termination; and the questions of evidence which arise on the indenture, severally give occasion to numerous appeals. A few observations, therefore, on each of these particulars are requisite. Of the Contract of Binding, and Parties thereto.]-1. The contract may be made by any person of more than seven years of age, for him or herself; for being invariably supposed to be for the child's benefit, it is a case beside the common rule of law, which makes the contracts of infants void (n). So decidedly is this established, that even in a case where the justices had disapproved of a parochial apprenticeship, and refused to affix their signatures to the order, yet as the infant, at nine years of (g) R. v. St. George, Exeter (Inh.), 3 Ad. & E. 373; 5 Nev. & M. 61, S. C. (h) 28 G. III. c. 48, R. v. Hipswell, 8 B. & Cr. 466; 2 M. &. R. 474, S. C. Under this inefficient enactment, even since 56 G. III. c. 139, s. 7, it is clear that a wretched female child, of seven years of age, might, by its parents, be apprenticed to sweeping chimneys !! (k) 54 G. III. c. 96. (m) 4 & 5 W. IV. c. 76, s. 67. |