merely assents, such assent is considered as unduly obtained, and the contract as subsisting till its natural termination. servant. In other cases, where the master assumes to discharge Discharge of the servant, without just cause, and the servant merely submits, the contract is considered as subsisting, and the service not rendered as dispensed with. (2) And where the performance of the service, at the close of the term, is prevented by sickness, the settlement will be gained, whether the master pay the whole wages or deduct a portion. (j) So, where the servant ceases to continue with his master in consequence of the master's bankruptcy or removal, the contract is not rescinded, and the settlement is gained. (k) But if the absence at the end of the term arise from the wilful default of the servant, or if the master discharge the servant for a lawful cause, the contract is properly dissolved, and the settlement is gone. () Thus, if a master discharge a female unmarried servant for being with child, the contract will be determined, and she may then be removed as chargeable, though she could not have been so removed if the master had chosen to continue her in his service. (m) And if a master and servant, at any time, without view to the settlement, agree to put an end to the relationship, and the servant departs, there can be no doubt that the contract is dissolved. Whether the contract has been thus dissolved is a question of fact, dependant on circumstances, and to be determined by them. If it has taken place a considerable time before the expiration of the term; the servant has obtained or sought for another service; or if the master has hired or sought to hire another to perform the duty; the fact will be almost decisive of a dissolution. The payment of the entire wages, or a deduction, is never in itself decisive; but it is a circumstance to be considered, among others, in guiding the bench to a decision. 4. Of the necessity and effect of residence.-Forty days' Residence. residence is a necessary ingredient in this, as in other kinds of adventitious settlement; and it is, after all, the essential point; for the settlement is not obtained where the servant works, but where he resides, for the last forty (i) The King v. St Philip, Birmingham, 2 T. R. 624. (j) The King v. Christchurch, Burr. S. C. 494. (k) The King v. St. Bartholomew, Cornhill, Cald. 48; the King v. St. Andrew's, Holborn, 2 T. R. 627. (1) The King v. Marlborough, 2 Bott. 299. (m) Cald. 57, 495, 562. Where the forty days' residence are not consecutive. Settlement by marriage. days of his service. And even if there be a hiring for a year, and a service for a year, and the servant remain after the expiration of a year, and accompany his master into another parish, either on a new hiring for a year, or without any engagement, he will be settled in the latter parish where he sleeps the last forty days of his service, though after the termination of the year for which he was hired, and though no second year in the second parish was ever completed. (n) If, indeed, the pauper be sent by the master for the last forty days to the house of his relations, on account of sickness or insanity, such a lodging not being with a view to the objects of service, will not exonerate the parish where he served and lived while in health, nor cast the settlement upon that where he sojourned in his illness. (0) The forty days' residence need not be consecutive; and where a servant, during his service, sleeps forty days at different times in one parish, and forty days at different times in another, the settlement will be in that parish where he sleeps the last night of his continuance in the service; (p) and this even though he slept in that parish upon that particular night on leave of absence given by his master. (q) The whole forty days must be found within the compass of a year; for, as observed by one of the judges, "it would be neither reasonable nor expedient that an inquiry should be gone into over a long period of time at detached intervals to ascertain a settlement; (7) but they need not be under the same yearly hiring." (s) § 6. OF SETTLEMENT BY MARRIAGE. The following are the rules generally applicable to settlement by marriage : 1. A woman marrying a man with a known settlement, shall follow it, and that even if she did not live there with him. 2. A wife can gain no new settlement for herself during coverture. 3. A woman marrying a man without a settlement retains her own. First then, where the marriage is legal, the settlement of the husband shall, by the intermarriage, be immediately Cald. 65. (0) The King v. Sutton, 5 T. R. 657. communicated to the wife; for wherever the husband is. settled, there the wife must likewise be settled. This being an admitted principle without exception, the only question it involves, that admits of being controverted on an appeal, is the legality of the marriage under which the settlement is claimed. By 26 Geo. 2. c. 33. s. 8. it was enacted that, "all Marriage act. marriages solemnized after 25th March, 1754, in any other places than a church or public chapel where bans have been usually published, unless by special license from the Archbishop of Canterbury; or that shall be solemnized without publication of bans, or license of marriage from a person having authority to grant the same, first had, shall be null and void to all intents and purposes whatsoever." And this provision is substantially incorporated in the 4 Geo. 4. c. 76. which is now the act regulating all marriages celebrated since 1 Nov. 1823. There is, however, this important distinction between the former and later act; that by the former, all marriages between parties, one of whom not being a widower or widow, was under the age of twenty-one years, had, without the consent of the father, of such of the parties so under age (if then living), or (if dead) of the guardian of the party, and in case there shall be no such guardian, then of the mother (if living and unmarried); or, if there shall be no mother living and unmarried, of a guardian appointed by the Court of Chancery; were null and void to all intents and purposes whatsoever." But by the late act such marriages are not avoided, though they are guarded against by forms and penalties. Marriages contrary to the provisions of the statute of George 2. and previous to that of Geo. 4. being declared void to all intents and purposes whatsoever, are of course void to the purpose of settlements, and neither can a woman herself, nor her children of such a marriage, obtain any settlement under, or by virtue of them. (1) The words, "all persons," in the provisions of the former act, as to the consent of certain parents, guardians, &c. being necessary, are so comprehensive as to comprise illegitimate as well as legitimate children. (u) Marriages subsequent to 1 Nov. 1823 are, of course, regulated, in like manner, by its provisions; and if invalid according to those provisions, confer no settlement. Although these statutes do not extend to Scotland, it Scotch marwas long doubted whether English parties, going to Scot- riages. (t) Bla. Rep. 192. (u) The King v. Hodrett, 1 T. R. 96. Marriage pro land for the special purpose of avoiding the restrictions of English laws, could be legally married. But in many recent cases such marriages have been decided to be good, and therefore must be held to confer a settlement. (v) And although the marriage be procured by fraud and cured by fraud. conspiracy, it will be good for the purpose of acquiring a settlement; (w) but the persons so procuring it, will be liable to be indicted. (r) Proofs of mar riage. Polygamy. ments. Cohabitation as man and wife for a series of years, is such presumptive proof of marriage, as will give the children a primâ facie title to the settlement of their parents. (y) And the proof of a marriage in fact is primâ facie sufficient; and it is incumbent on the party who would impeach it, to shew wherein it is defective. The numerous instances which have occurred of late years of second marriages contracted by persons during the life time of their lawful wives, render a few words on polygamy necessary, inasmuch as the settlements of the children of such second and illegal marriages may become the frequent subjects of appeal. On the offence of polygamy itself, or on the punishment of it as such, much Consequences as observation would be misplaced here; our immediate conaffecting settle- cern being with its consequences as they affect settlements. It is enough, therefore, to say, that the statute which ordains the punishment, (2) describes it to be " any person within his Majesty's dominions of England and Wales, marrying any person, the former husband or wife Construction of being alive." To the word "within," this construction certain words in has been given, viz. that if the first marriage were beyond the sea, and the latter in England, the latter is the offence, and the illegal marriage for which the party may be indicted here, and of course such marriage conveys no settlement; but if the second marriage be abroad, although no such second marriage can convey any settlement, it is not an offence punishable here.(a) the act. Evidence of the crime. On the expression which denotes the offence itself, "the marriage," it is to be observed that, in the trying it as a crime, the first and true wife cannot be admitted a witness against the husband (nor vice versa) but the second wife, being in truth no lawful wife, may be admitted. (b) But on the removal of a woman to her supposed husband's settlement, the illegality of the marriage may be (v) Ex parte Hall, Rose, R. 30. (x) Cald. 249. Burr. S. C. 508. 1 Hale, 693. proved by either 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." (c) The fact of marriage cannot be inquired into after an When the enorder of removal, stating the parties to be husband and quiry excluded. wife, if such an order be not appealed against; for the time being past for taking advantage in regular course, even though the fact were not then discovered, the parties who are damnified must abide by the consequences, for they are estopped after. (d) On the words of the statute of James, "the former husband, or wife, being alive," it is enough to observe, that three exceptions are made by subsequent clauses of the statute, which are, "where one of the parties shall continue beyond the seas for seven years together; or, being within the kingdom for seven years together, shall be so secreted, that one party shall not know whether the other is alive; and thirdly, 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 consequences, 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 last point, under this division, necessary to be Woman's settlenoticed, is one which was long controverted, and agitated ment not suspended during in many cases, (e) but which is at length settled, viz. coverture. whether the settlement of a woman marrying a man, whose settlement is not known, be suspended during coverture, and revive after his decease; or whether it continue during coverture; and also as to the mode of proceeding upon an appeal under these circumstances. One case, out of many, was the following, which presents the best illustration of the point. A widow and her four children were removed from the parish of Woodsford to the parish of Winborne Minster. The session, on appeal, adjudged the settlement to be at Woodsford, and quashed the order, stating, that by a rule (d) Burr. S C. 551. (e) Burr. S. C. 367; Cald. 39, 371; 2 Bott. 86. (c) 2 Bott. 81. |