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he asserted) no settlement by this purchase, the consideration Over-norton

money being under 30/., and therefore could communicate none °

to his children.

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- r *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 statute 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) (ar), 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

«U, l B. & C. U%; S. C. 3D. & R. (tf) Burr. S. C. 412; and sec Leedi v.

9; R. v. Geddington, 2 B. * C. 129, Blacltfordby, pott, 466; Dunehureh v.

3 D. & R. 403, where all the cases are South Kilwortk, post, S97. referred to. (*) C. 11.

Over-norton purchase, and thereby fix a burthensome family on the pa

"■ rish;—or if, as in the present case, a child is forisfamiliated

Alford. 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

j * 435 ] * statute has relieved parishes in one instance, vis. 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 bond 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 291., 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 Wood/my 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 30/. 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 pafa) R. v. Ted/ord, Burr. S. C. 57; 11. v. the 40/. to the original vendor, upon his Chailey, G T. H. 755. But where the delivering up to him the title deeds and the pauper purchased a messuage for 522. un- remaining 20/. to the pauper, on the eider an agreement that the vendor should ecution of the conveyance to him, at which allow 40/. of the purchase-money to re- time the pauper quitted the messuage, not main upon mortgage, and such mortgage having resided on it forty days after the was accordingly made, and 12/. only paid payment of the 40/. to the original vendor; by the pauper to the vendor, who kept the it was held, that the pauper did not gain a title deeds in his hands, but the pauper settlement by residence on such estate; K. took possession and resided in it some v. Olney, 1 M. & S. 387; R. v. Mattiugyears, but was unable to pay the rest of Icy, 2 T. R. 12, ace. thepurchase money, and afterwards agreed (It) Stra. 438.

to sell it to B. for 60/., who thereupon paid

rishes would be concluded in respect of the son by the * con- Over-norton

firmation of this order of reversal. But if the father has no per- _ "•

manent 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.

[Pott, 455, S. C]

Lord V. Cooke.

Jvxotion to put off a trial, on the usual affidavit (c) of the Where witness

absence of a material witness, who was gone to the East Indies, ^j11 be a'>scnt

and not expected home under eighteen months. The Court speda0inCase u

would not grant the rule nisi, unless the defendant would en- requisite to put

gage to make a special case, stating the nature of the demand, offa tria' !°r .

and what it was the witness could prove. Which being accord- fcnC£
ingly 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) Vii: "That E. F., late of , is torney's clerk, unless he has the manage

a material witness for him this deponent in ment of the cause, and is acquainted with

the said cause, as he is advised and verily the particulars, Sullivan v. Magill, 1 H.

believes, and that he cannot safely proceed Bla. 637. It is said, that in C. P. the de

to the trial thereof without the testimony ponent must state absolutely and not to his

of him the said E. F.:" and then stating belief only, that the person is a material

that he had caused enquiry to be made af- witness; Day v. Samson, ubi supra; Eyre

ter him, the result of the enquiry, and the v. , Pr. Reg. C. P. 402. And the Court

time when he is likely to attend. It should will not put oft" a trial, if the defendant has

regularly be made by the defendant, but acted unfairly, or been himself the cause

has been allowed to be made by his attor- of delay; Saunders v. Pitman, 1 Bos. &

ney; Duberly v. Gunning, Peake's N. P. P. 33.

C. 97; or even a third person, Day v. (d) See A. v. D'Eon, post, 514,8s n. (it).

Samson, Barnes, 448; but not by the at

Combe qui tarn v. Pitt. [ 437 j

S. C. 3 Burr. 1423.

.DEBT qui tarn for 1500/.; being three penalties incurred un- Against a popuder the statute for bribery at the last Ilchester election in 1761. ^f^nt Cm Defendant pleads in abatement, that another action of the same not'piead an?"

Combe

Pitt.

other action in the same Term, but must shew the other action to be actually prior in time.

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 ] Wni 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 {/). But this is the case of a common informer upon a penal action, which the Court will never aid. And so is Holts 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 (A).

Yates, for the plaintiff, insisted, that it is not incumbent on the plaintiff, to shew a priority; but on the defendant, who sets

(» 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.

(/) Ante, 320.

(g) S. C. 1 Show. 353 i 4 Mod. 129;

Holt, 522; Comb. 194; S. C. in error, ciied 1 Ld. Raym. 78, where a majority of the judges held, that penal acts are not extendible by equity.

(ft) Tyler T. Wall, Crc Car. 228; SUM v. Bale, 3 Lev. 348; 2 Wms. Saund. 84, n. (1); Com. Dig. Pleader (F 7. 11).

up the plea, to shew the priority of Lake. And he cited John- Combe son and Smith, P. 83 Geo. 2(i), that, to effectuate the statute p[""T

of limitations, the true time of suing out the writ may he aver- > ^-1>

red.—That Lake is a common informer as well as Combe; and the Court will not aid one more than another.—That, in CuUiford and Blandford, three Judges concurred against Holt. That the plaintiff was guilty of no laches, as he served the writ before the day of the return. That if this doctrine should prevail, a man might evade any penal statute by getting a friend at the end of every Term to sue out a writ and serve him, by which means he may gain a priority, or at least a parity, with all other men. 2. This is no departure; for here is no fact shewn that is inconsistent with, but merely explanatory of, the former.

In the same Term, Lord Mansfield, C. J., gave the judgment of the Court.

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 j 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 (A), 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®.

[Poll, 523, 5. C]

(>) Ante, 21 j; see also Morris v. Har- Hawk. P. C. c. 26, J. 63; Bac. Abr.

wood, ante, 320; Hart v. Weston, pott, Abatement (H); Com. Dig. Id. (H 24).

683; Leadbeater v. Markland, pott, 1131. In one caw, indeed, it is said, that to debt

(*) Ante, 71, n. on 5 Eliz. c. 4, the pendency of a prior ac

(/) As to pleading another action pend- lion must be pleaded in bar, and cannot be

ing in abatement, sec S/iarrie't Ca., 5 Kep. pleaded in abatement; Haines v. Black

61; Boyee v. Douglas, 1 Camp. 60; 2 bourne, Say. R, 216.

The King V. Delaval et aF.

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 ^^d^w "by

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