he asserted) no settlement by this purchase, the consideration OVER-NORTON money being under 301., and therefore could communicate none to his children. SALFORD. And now Morton, Blackstone, and Carter, shewed for cause. 1. That, whether permanently settled or not, it is sufficient to support the present order, if the pauper is not now removeable. In Athrop Ruding and White Ruding, M. 30 Geo. 2 (y), the wife was held not to be removeable from A., and yet her settlement continued in B. 2. That the son's settlement being hitherto merely derivative, must depend on his father's. If the father's present settlement is at Salford, the son's present settlement is there also. 3. That the father's settlement, by the purchase in 1726, and forty days' residence, was in Salford, when the pauper was born;-has continued so ever since; *—and remains to this hour in Salford. Indeed, under sta- [ 434 ] tute 9 Geo. 1, this settlement will determine, if ever he removes from his purchase. But till then, Salford is his only settlement; for no man can have two at once. Before the statute, residence for forty days in the parish after any purchase gained a settlement, which after fifty years' absence might be resorted to, if no new settlement were acquired. So the law continues in purchases of 30%. and upwards; but in purchases under 30%., when the purchaser quits the occupation, the sta tute destroys the settlement. It does not prevent the gaining a settlement by such a purchase; but makes it a defeasible settlement, by subjoining to it a condition subsequent, that of perpetual residence. He gains the settlement by the old law before the statute;-the statute only limits its duration. He shall gain it, "for no longer time than he shall inhabit "thereon;" and "he then shall be liable to be removed," viz. after the condition of perpetual residence is broken; consequently he was not so before. And he shall be removed "to his last legal settlement before the said purchase;" i. e. on the defeating the new settlement, the former shall revive; but it did not subsist during the inhabitancy, for then the statute would have only said to his legal settlement." 4. This differs from the case of certificate-persons, for there the statute (9 & 10 W. 3) (2), contains an express negative: "He "shall acquire no settlement, unless by two specific methods." Here the law permits the acquisition of the settlement, and only regulates its duration;-if it never is acquired, it could not have endured an instant. 5. If during the father's residence at Salford, his children born there are settled at OverNorton, then he gives them a settlement, which he has not himself; and this inconvenience will also follow; that his children, after seven years old, may be taken from him and removed to Over-Norton. 6. As to the inconvenience that might arise, if a father should reside till his death on a trivial well, 1 B. & C. 542; S. C. 3 D. & R. 9; R. v. Geddington, 2 B. & C. 129, 3 D. & R. 403, where all the cases are referred to. (y) Burr. S. C. 412; and see Leeds v. Blackfordby, post, 466; Dunchurch v. South Kilworth, post, 597. (*) C. 11. ບ. SALFORD. [ *435 ] * OVER-NORTON purchase, and thereby fix a burthensome family on the parish; or if, as in the present case, a child is forisfamiliated during his father's residence, and thereby perhaps rendered incapable of changing his settlement, if his father should hereafter remove;-these are grievances, for which, if the statute has given no remedy, the Court cannot give it. The statute has relieved parishes in one instance, viz. the absence of the purchaser after residence on a trivial purchase. It has left other cases as it found them. Under such a purchase as this, ten daughters might indisputably gain settlements by a descent in coparcenary; or ten sons, by a devise to them all in common. 7. Statutes in bar of settlements have always been strictly construed; and in particular this clause of 9 Geo. 1. A man who mortgages the estate to raise the consideration money has been held a bona fide purchaser (a).-And purchases under this statute are confined to acquisitions by sale only, and extend not to those by settlement, gift or devise. 8. Lastly, as it is stated that the original title was bad, Carter urged, that this was not to be considered as a purchase for 297., that transaction being void; but that White's was a title commencing by disseisin, and so not within the statute 9 Geo. 1. Norton, Solicitor-General, in support of the rule, insisted, that the only question was, whether a son, emancipated, and living separate from his father, should have a right to stay in the parish where his father resides, or be sent to his own legal settlement. That if the son be not now removeable, he never can be so; for, according to the doctrine in East Woodhay and West Woodhay (b), if a child ceases to be part of his father's family, and the father afterwards changes his settlement, the new settlement shall not go to the son. That the original settlement at Over-Norton never was discontinued, or so much as suspended; for that a purchase under 301. does not give any settlement, but a mere personal privilege of residence. That it would make wild work in parishes, if by a purchase of 40s. value, and residence thereon, a burthensome family might be brought upon the parish. That if the father himself should cease to reside on the very spot, he might instantly be removed to Over-Norton:-A fortiori the son is liable, for he has ceased to reside there, is emancipated, and has left his father. That if the doctrine now contended for should prevail, and the father should remove and alter his own settlement; yet the two pa (a) R. v. Tedford, Burr. S. C. 57; R. v. Chailey, 6 T. R. 755. But where the pauper purchased a messuage for 521. under an agreement that the vendor should allow 401. of the purchase-money to remain upon mortgage, and such mortgage was accordingly made, and 127. only paid by the pauper to the vendor, who kept the title deeds in his hands, but the pauper took possession and resided in it some years, but was unable to pay the rest of the purchase money, and afterwards agreed to sell it to B. for 607., who thereupon paid the 401. to the original vendor, upon his con- OVER-NORTON rishes would be concluded in respect of the son by the firmation of this order of reversal. But if the father has no permanent settlement, much less can the son be supposed to have one, who derives all he has from the father. As for the title by disseisin; after thirty-six years' quiet possession the law will not presume a wrong, but rather presume a right, in the present possessor. Lord MANSFIELD, C. J., lamented the unhappy policy of our present poors-law, which (after thirty-six years' residence of a man in a parish, which had had all the benefit of his vigour and labour) now rendered it a very doubtful point, where he and his family were to be settled. He would take a day's time to consider it. Afterwards, the last day of the Term, Norton, Solicitor-General, moved for the judgment of the Court; but was told, they had not formed their opinions; so it was adjourned over till Michaelmas Term, but with this proviso, that the costs of maintaining the pauper from this day, should attend the event of the cause. [Post, 455, S. C.] v. SALFORD. LORD V. COOKE. MOTION to put off a trial, on the usual affidavit (c) of the absence of a material witness, who was gone to the East Indies, and not expected home under eighteen months. The Court would not grant the rule nisi, unless the defendant would engage to make a special case, stating the nature of the demand, and what it was the witness could prove. Which being accordingly done, the Court thought it not sufficient to stay the trial; and therefore discharged the rule that had been obtained to shew cause (d). (c) Viz: "That E. F., late of—, is a material witness for him this deponent in the said cause, as he is advised and verily believes, and that he cannot safely proceed to the trial thereof without the testimony of him the said E. F. :" and then stating that he had caused enquiry to be made after him, the result of the enquiry, and the time when he is likely to attend. It should regularly be made by the defendant, but has been allowed to be made by his attorney; Duberly v. Gunning, Peake's N. P. C. 97; or even a third person, Day v. Samson, Barnes, 448; but not by the at torney's clerk, unless he has the manage- (d) See R. v. D'Eon, post, 514, & n. (k). Where witness will be absent special case is requisite to put off a trial for 18 months, a want of his evidence. COMBE qui tam v. PITT. S. C. 3 Burr. 1423. DEBT qui tam for 15007.; being three penalties incurred under the statute for bribery at the last Пlchester election in 1761. Defendant pleads in abatement, that another action of the same [ 437 ] Against a popu lar action the defendant can not plead an COMBE บ. PITT. other action in the same Term, the other action to be actually prior in time. but must shew sort was brought in the same Term by one Lake, which is still depending; and avers, that the facts alleged in both the bills are the same. Plaintiff replies, that on 30th June, 1762, he sued out a latitat, which was served on the defendant the 29th of July, and that his bill was filed on the first return in Michaelmas Term.-Defendant rejoins, that, on the same 30th of June, Lake sued out his writ of latitat, which was served on the defendant the 7th of July, and his bill was also filed on the same first return day in Michaelmas Term.-Plaintiff sur-rejoins, that, in fact and truth his own writ was sued out on the 1st of July, and Lake's on the 3d, though both were, according to the usage and practice of the Court, being sued out in vacation, tested on 30th June, being the last day of the preceding Term. To this the defendant demurs generally, and also specially, for that the sur-rejoinder, which avers the suing out of the writ to be on the 1st of July, is a departure from the replication, which avers it to have been sued out on the 30th of June. In support of this demurrer, Dunning, for the defendant, argued 1st. That there is not a sufficient priority in the plaintiff; both writs being legally sued out at the same time. And cited Pye and Cook, T. 1 Jac. 1, Moor. 864, Hob. 128; Hutchinson and Thomas, 2 Lev. 141; Jackson and Gisling, 15 Geo. 2, ill reported, 2 Stra. 1169; but (as appears from a manuscript of the counsel who argued it) the Court established a distinction therein, between pleas in abatement, and pleas in bar. That, where another action pending is pleaded in bar, you must shew the priority of the real day; as in 2 Lev. (e). But where it is pleaded in abatement, as in Hobart and Moor, there you need not; for their only effect, if they are sued out eodem instanti, [ *438 ] will be to abate each other. He allowed, that in case of the statute of limitations or a plea of tender before action brought, which are favourable cases, the Court will allow the true time to be averred, when the writ was sued (f). But this is the case of a common informer upon a penal action, which the Court will never aid. And so is Holt's opinion in Culliford and Blandford, Carth. 234(g). Therefore, (even putting the service of the writ out of the case, in which Lake had a manifest priority) the writs are both in law sued out the same day, are returnable the same day, and the bills are filed the same day; the consequence of which is, that they mutually abate each other. 2dly. The change of the day upon the pleadings is such a departure, as is a defect in substance as well as in form; Cole and Hawkins, 1 Stra. 21 (h). Yates, for the plaintiff, insisted, that it is not incumbent on the plaintiff, to shew a priority; but on the defendant, who sets (e) There the defendant pleaded in bar to an information for usury, a judgment obtained against him in an information for the same offence, exhibited in the same Term. (ƒ) Ante, 320. (g) S. C. 1 Show. 353; 4 Mod. 129; Holt, 522; Comb. 194; S. C. in error, cited 1 Ld. Raym. 78, where a majority of the judges held, that penal acts are not extendible by equity. (h) Tyler v. Wall, Cro. Car. 228; Stone v. Bale, 3 Lev. 348; 2 Wms. Saund. $4, n. (1); Com. Dig. Pleader (F 7. 11). up the plea, to shew the priority of Lake. And he cited John- In the same Term, Lord MANSFIELD, C. J., gave the judgment of the Court. COMBE V. PITT. It is not necessary to go into any of the pleadings after the plea; for that being bad, the rest will fall of course. The plea, which is in abatement, sets forth another action in the same Term. Now a defendant, who is to defeat an informer of the [ 439 ] right of suing, must shew a prior right attached in somebody else. This is proved by the cases in 2 Lev. 141, Hutchinson and Thomas, that, notwithstanding the general fiction of law, you may aver the particular day in order to shew your priority; and Stra. 1169, Jackson and Gisling, (which Dennison, J., said appeared from his notes to be well reported). As for the distinction attempted between pleas in abatement and bar, it will not hold. The Court can as easily see, that one writ is prior to the other, as that both are sued out in the same instant. As to the case in Hob. 128, we are of opinion, that what is there put is a mere creature of the imagination, like a point in mathematics. We even think, that not only the day, but the very time of the day, may be averred, in order to determine the priority (k), as they always mark the hour in the Register's Office. So that there never can be two actions brought at exactly the same identical time. On the authority therefore of the cases in Levinz and Strange, our judgment is, that the defendant Respondeat Ouster (1). [Post, 523, S. C.] (i) Ante, 215; see also Morris v. Harwood, ante, 320; Hart v. Weston, post, 683; Leadbeater v. Markland, post, 1131. (k) Ante, 71, n. (1) As to pleading another action pending in abatement, see Sparrie's Ca., 5 Rep. 61; Boyce v. Douglas, 1 Camp. 60; 2 Hawk. P. C. c. 26, s. 63; Bac. Abr. The KING V. DELAVAL et al. S. C. Ante, 410. LORD MANSFIELD, C. J., delivered the opinion of the Court. Information -Upon the new affidavits which have been laid before us, the granted for a confederacy by |