for the same during the whole of that time, and resided and slept in the said house in the said parish more than forty days during such occupation, [this is put as an instance of the mode in which a settlement obtained under 59 G. III. c. 50, it might be stated. If the appellants rely on other grounds of appeal, they should here be stated, or cannot be gone into at the trial], and is settled in the said parish of A. A. And take notice, that, at the trial of the said appeal, we, on behalf of the said appellant parish, will seek to avail ourselves of all the said grounds, or some one or more of them, in support of the said appeal. Witness our hands this , 1837.

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Leading Points of Law of Settlements, and the various Settlements enumerated.]—We are now to consider the present state of those leading points in the Law of Settlements which govern the decision of appeals against orders of removal; but a correct sketch will be all of which the limited plan of this work will allow.

A settlement is either in the place of birth, which is the prima facie settlement of every one till another is discovered to have been derived from one acquired by parents (called settlement by parentage), or in the case of females, to have been acquired by marriage; or next, it may be acquired from inhabitancy connected with some circumstance giving it a character of permanency, as apprenticeship, hiring and service, renting a tenement, payment of public taxes of a parish (if before the passing of 35 G. III. c. 101, or since the passing of 59 G. III. c. 50, 6 G. IV. c. 57, and 1 W. IV. c. 18) (s), serving an annual office, or by admission or acknowledgment, e. g., by certificate of settlement in a parish named, relief, or previous order of removal unquestioned on appeal.

SECTION III.

OF SETTLEMENT BY BIRTH.

Settlement of Persons born in Wedlock.]—Prima facie, the place in England or Wales maintaining its own poor at which any (1) person is born in wedlock, is the place of his settlement; however, as that is

(8) See 4 Burn's J. by Chitty, 29th ed., R. v. Stoke Damerel, 6 Ad. & E. 308; 1 Nev. & P. 56; and 1 & 2 W. IV. c. 42; and post.

(1) Whether of English, Welsh, Scotch, or Irish, R. v. Preston, 12 Ad. & E. 822, or foreign parents, R. v. Eastbourne, 4 East, 103.

only so because no other can be discovered (u), (e. g., the father's (x), or if that cannot be found, the mother's (y), or one acquired by the pauper himself), proof of birth at any given place is the weakest evidence of a settlement there (z). First, the marriage of the father and mother, and the pauper's subsequent birth (a), must be shown next the place of birth. These may be proved by the father or mother (b), though not by the pauper, as the utmost he can prove is his first recollection of himself as living at a given place (c). Nor will an entry in a register of baptisms, showing a person of the pauper's name to have been baptized in a particular parish, suffice per se without evidence to connect him with that entry (d). This settlement may be lost by the township in which the pauper was born within a parish, having been subsequently separated for the purpose of maintaining its own poor (e).

Bastards born on or before 14th August, 1834, are settled at their places of birth, except where the transaction was vitiated by fraud, or contrivance to throw a burden on the parish (ƒ); or where the child was born of a woman who was at the time under an order of removal, whether before actual removal or in transitu, or during a suspension of the order, but not after its actual execution by removal, though she returned to and was delivered in the removing parish (g).

A bastard born in an extra-parochial place did not follow the settlement of its mother (h); nor if it was born in a parish to which the mother was removed by an order which was afterwards quashed (i). It was entitled to remain with its mother while the purposes of nurture required, and afterwards to relief as casual poor till it acquired a settlement (k).

(u) R. v. Heaton Norris, 6 T. R. 653; 3 Ad. & E. 649, per Patteson, J. (x) R. v. St. Giles's, Sess. C. 18. (y) Tynton v. King's Norton, 2 Bott, 31. See 1 B. & Ad. 201.

(z) R. v. Wakefield (Inh.), 5 East, 338. See 15 East, 351.

(a) Baptism after marriage is not per se proof of the birth having been after the latter event, Goodright v. Moss, Cowp. 591.

(b) See R. v. Erith, post.

(c) R. v. Trowbridge, 7 B. & Cr. 252, cited 11 Ad. & E. 623. See R. v. St. Mary, Leicester, 3 Ad. & E. 644.

(d) Creech v. St. Michael's, Pitminster, Burr. Set. C. 765; R. v. North Petherton, 5 B. & C. 208; R. v. Clapham, 4 C. & P. 29; Wihen v. Law, 3 Stark. R. 63; Walker v. Beauchamp, 6 C. & P. 552; R. v. Lubbenham, 5 B. & Ad. 968.

(e) Reg. v. Tipton (Inh.), 2 Q. B. 315; 2 G. & D. 92, S. C.

(f) See R. v. Mattersey, 4 B. & Adol. 211; R. v. Wilson, 2 id. 230; Tewkesbury v. Twining, 2 Bulst. 349; Masters v. Child, 3 Salk. 66.

(g) R. v. Halifax, 2 B. & Adol. 211; 1 Stra. 476, is contra, R. v. Llandinaboe. (h) R. v. St. Nicholas, Leicester, 2 B. & Cr. 889; 4 D. & Ry. 462, S. C. This occasioned such places to be much frequented by pregnant single women, in order to escape from inquiry as to preg

nancy.

(i) The order of removal of a mother and her bastard child is not bad for adjudicating the settlement of the child to be that of the mother absolutely, Reg. v. Shipston on Stour, ante; R. v. Martlesham, 10 B. & C. 77; and see 2 B. & Adol. 211.

(*) R. v. St. Nicholas, Leicester.

Bastards born after 14th August, 1834.]-But by 4 & 5 W. IV. c. c.76, s. 71, a child born bastard after 14th August, 1834, has and follows its mother's settlement (1), even when acquired by her marriage after its birth (m), till it attains the age of sixteen, or acquires a settlement in its own right. Supposing, however, the mother to have no settlement at the time of the birth, or to acquire none by marriage (n), the place of birth seems the only settlement of her illegitimate child, subject to the exceptions just above stated, as to which, see more fully, ante, Chap. XV. Sect. 1.

The place of birth confers no settlement where the birth is in an extraparochial place not having an overseer (o), or in a parish to which a removal of the mother had taken place under an order afterwards reversed, or in a prison in which the mother was confined (p), or in a house of industry, or house incorporated by statute for reception and care of the poor of any district, &c. (q), or in the work house of a union where she was an inmate as a pauper (r), or in a parish in which she was residing (s) under a certificate not including her specifically by description (t), or in a lying-in-hospital licensed by quarter sessions (u), or in a lunatic asylum (x), or other charitable institution (y).

Proof of a birth settlement may be rebutted by evidence of a settlement by parentage, deduced from that of the mother as it stood before her marriage, or as acquired since her husband's death, though nothing appear to show the father's settlement, or that attempts were made to discover it. For the fact of the appellant's relying on a birth settlement, in effect supposes the father to have none; so that in the absence of proof of any settlement paramount to the mother's the latter is not itself displaced, and will displace a mere birth settlement (z).

If a legitimate child be born of a mother in a state of vagrancy, and the settlement of neither parent can be ascertained (a), it must belong to the parish where it is born till a derivative settlement is discovered,

(1) As to this section 71, as affected by sect. 57, ante, p. 713. See Reg. v. Wendron, 7 Ad. & E. 819; 3 N. & P. 62; ante, p. 714.

(m) Reg. v. St. Mary's, Newington (Inh.), 4 Q. B. 581.

Reg. v. St. Mary, Newington. R. v. Oakmere (Inh.), 5 B. & Ald. 577, see ante, p. 717.

(p) 54 G. III. c. 170, s. 2. See 13 G. III. c. 82, s. 2,5; R. v. Manchester, 4 B. & Ald. 504. Bastards born in a house of industry, &c. before 14th Aug. 1834, are deemed born in the parish on whose account the mother was received

and maintained.

(q) 54 G. III. c. 170, s. 3. See 20 G. III. c. 36, s. 2.

(r) 7 & 8 Vict. c. 101, s. 56. (8) R. v. Sherborne, Burr. S. C. 182. (t) R. v. Darlington, 4 T. R. 797. (u) 54 G. III. c. 170, s. 2. See as to foundling hospital, 13 G. II. c. 29. (x) 51 G. III. c. 79.

(y) 54 G. III. c. 170, s. 6. (2) R. v. St. Mary, Leicester, 3 Ad. & E. 644; 5 N. & M. 215.

(a) e. g., if the mother dies in the labour, &c. see 3rd edition of this work, 480.

or it acquires settlement for itself; at all events, it is casual poor, to be maintained by that parish in the mean time.

As to stating this settlement in examinations and grounds of appeal, see sections 2 & 3 of this Chapter, ante.

SECTION IV.

OF SETTLEMENT BY PARENTAGE.

THIS settlement, with the exception just noticed, of bastards born after 14th Aug. 1834, can only be claimed by persons born after the marriage of their parents (b). The settlement of every child born in wedlock is to be referred in the first instance to its father's settlement, if it can be traced, though derivative from his mother's maiden settlement, who married a foreigner without one, and though the child's mother has acquired one for herself since (c); but if it cannot, then, in the second place, to his mother's maiden settlement.

Indeed, as against the claim of a birth settlement merely, it seems needless to give evidence of having traced the father's as the primary settlement without success, in order to be admitted to prove the mother's settlement, whether maiden, or acquired after her husband's death (d).

Legitimate children, while continuing part of their father's family, have such a right to his legal, i. e., his last legal settlement, that it is not defeated by his attainder for felony (e), nor by the removal of his residence (ƒ), nor by his acquiring a new settlement before the child's emancipation (g), nor by the father's death either before or after the birth (h). Indeed proof of a father's settlement is deemed in all cases good prima facie evidence of the settlement of his son, though emancipated, and even of his son's wife's family (i). The same general law applies to a settlement derived from the mother, whether maiden, or acquired in her own right after her husband's death, during widowhood, e. g., by renting a tenement, &c. But if after the death of her

(b) Hard's case, 2 Salk. 427.

(c) R. v. St. Matthew's, Bethnal Green, Burr. S. C. 482, not overruled by R. v. St. Mary, Leicester, 3 Ad. & E. 644; 5 Nev. & M. 215, S. C.; for there no settlement of the father appeared. See ante, p. 759, 760.

(d) R. v. St. Mary, Leicester, 3 Ad. & E. 644.

(e) R. v. Haddenham, 15 East, 463; R. v. Cardigan, 6 T. R. 116. See 5 B. & Cr. 585; 8 D. & R. 400, S. C. (f) 2 Sess. Cas. 150.

(g) 2 Salk. 528, Cumner v. Milton, 6 Mod. 87, and acted on in R. v. Hendon, 2 Q. B. 455, tit. Settlement by Estate. (h) R. v. Clifton, 19 Vin. Ab. 382. (i) R. v. Stone, 6 T. R. 56.

husband she marries a man with a settlement, and thus obtains his settlement, she does not communicate the latter to her children by her former husband (k).

Ousting Derivative Settlement by Parentage, by Obtaining another Settlement, or by Emancipation.]-A legitimate child is irremovable from its mother, or if she is dead, from its father, till it be seven years of age, as requiring nurture; but after that age, it cannot be removed as part of the parent's family, without an express adjudication by the justices of the place of its own legal settlement, whether it still retains its derivative one or not. For as at seven years of age a child may become an apprentice, it is then capable of acquiring a settlement of its own; and thus, in a life of seven years and forty days, a child may have defeated its derivative settlement, and acquired a personal settlement of its own, e. g., by apprenticeship, hiring and service, completed before 14th August, 1834.

Emancipation.]-But a child may also cease to be a member of its parent's family, which is called being emancipated, without having obtained any new settlement for itself, or having done any thing to supersede its original derivative one by parentage. The cases which govern this head of law are very numerous; but the criterion whereby the fact of emancipation may be collected from them has been thus stated by Lord Kenyon (1). "If a child be separated from his or her parents, and without obtaining any personal settlement returns to the parents during the age of pupilage, such child remains part of the parent's family; but if, when the time arrives at which, by estimation of law, a child wants no further protection from its parents, it removes from them, it shall not for the purpose of a derivative settlement be deemed part of the parent's family." In an earlier case (m) the same Chief Justice had said, "Ordinarily one of these things must happen-either a child must have obtained a settlement for himself, or he must have become the head

(k) Cumner v. Milton, 6 Mod. 87; 2 Salk. 528; St. Giles's v. St. Clement's, Cald. Ca. 10. They retain the settlement which she had at the time of her second marriage, either in right of her first husband, or as after acquired by herself, till they acquire settlements of their own, Wangford v. Brandon, Carth. 449; R. v. St. Giles-in-the-Fields, Burr. Set. C. 2, &c. &c.; and they are not removable with the second husband and their

mother; unless under the age of seven years, R. v. Walthamstow, 6 Ad. & E. 301; 1 N. & P. 460, S. C. decided on 4 & 5 W. IV. c. 76, s. 57. See ante.

(1) R. v. Roach, 6 T. R. 247; see R. v. Hardwicke, 3 B. & Ald. 176; R. v. Oulton, 5 B. & Adol. 958; 3 Nev. & M. 262, S. C.

(m) See per Lord Kenyon, in R. v. Offchurch, 3 T. R. 114.