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lege.—By lord Kenyan Ch. J. This is a new case in the law
of settlements, but I cannot bring my mind to doubt about it.
A settlement is not the property of any wan; it cannot escheat:
neither can it be called a franchise; in the case of a franchise it
has been rightly decided, that by attainder the franchise is lost
but * this person was before his attainder settled in the parisli
* to which the panpers were removed, and I think the father's
'settlement was cotnmnnicated to them,' and that the justice!
at the sessions were mistaken*.—-by The Court, Order of ses
lions quashed. 6 Term Rep. 116.
Jf ilje father ^s a |c£,jtimatc child has a right to his parent's settlement
mine the child *ne father's shall take effect first; bat where the father ha
rout jo to the none, the child must go to its mother's settlement; for in sue
Motbti'i. case, if the mother's settlement can be found, the child sha
have the benefit of it. Burrozn's Sett. Can. 2. 307. 48!
Forfescue, 314. 2 Sess. Cat. 112,113. Foley, 251, 252.
Thus in the K. v. St. Botolph's, Ml. 28 Geo. 2.—A worn! settled in St. Botolph's married an Irish sailor who had no se tlement ; and the sessions removed her and her child to £ Botolph as the place of her last legal settlement... By The Cour a legitimate child has a right to its parents' settlement. T father's settlement shall take effect first} but in cases like tl where the father has none, the child must go to its muthe settlement, and not merely for nurture. Burrozc's Sett. C' 387.
So in the K. v. St. Paul, Shadaell, Jr. 9 Geo. 1.—It > ruled by Eyre and Fortescue, that the children should hare I benefit of the mother's settlement where the father, beiru foreigner, had none himself, for that her right should be tra ferred to them, and that under such circumstances they sho not be sent to the place of their birth. 2 Bolt, Const's 32.
So also in the case of the K. Y. Westerham, a woman mar: an Englishman, whose settlement was unknown, married, hs child and r;ui away.—Her child was then nine years of age. The Court. This woman and her child ought to be set where her settlement was before marriage. Foley, 288.
So also in Tynton v. King's Norton, 13 Geo. 1 The
tlement of a pauper's mother was at iPorthling in Salop -
•Lord Krnyon added, that it would he a doubt whether tK himself could gain a settlement after the attainder.
Likewise in St. Giles's v. St. Margaret's, Mic. S Geo. 1.— A woman and her daughter, ag^d 5 years, were removei to the place of her last le*al settlement, before her marriacu with an Irukman who hid no settlement; and the order was Cod firm. ec\ Foley, 537.
And the mother's settlement shall not only be the settlement of hir own children, but of iier grandchildren also, if their re. jpectiie fathers hare no settlement—This was detenniaed in the A", t. St. Mallieic's, Bethrntl Green. Mic. 33 Geo. 1. A woman settled in the precinct of St. Katharine's, married a roan whose settlement was unknown, and who died many jean ago: she aiterwards married a Frenchman, who never gained a settlement; by whom she had a son, born in liethnal Green, which son afterwards married a woman settled in the parish of it. Leonard, Sioreditch, and had several children by her. It was contended, that an acquired settlement is to be preferred to a derivative one, and that therefore these children onght to follow the acquired settlement of thetr mother; and not their father's, which was only a derivative one from, their gnadmother. But the distinction was not allowed, for the cowl aid, there is no difference between an acquired and derivative settlement. And the rule laid down was this, that the co-Id's settlement follows that of its father, if the father's can he found; and that no recourse shall be had to the mother's Jettlanent till that of the father can be traced no farther; and "** children were adjudged to be settled at St. Katharine's. Burroa's Set. Cos. 482.
Also if the mother after her husband's death acquire a new settlement in her own right; such new settlement is communicated to such of her children as have not before gained a wtlement for themselves: this was settled in the case of St. G&rgc's v. Katharine's, Ea. 1 Geo. 1. 3o}m Cloyd left a widow and six children (four of which were more than seven JTfars of age); he was legally settled at St. Katharine's at the oroeof his death; shortly after which his widow and six children went to dwell in the parish of St. George's, Southwarh', none of the children had then gained a settlement distinct from the settlement of their father; the widow took a house in St. George's of the rent of twelve pounds ayear, livtd | ' it four months with her children ; the question was, Whether ft* children should be settled where their father was last settled, or have a settlement with the mather in St. G orge's? -Bx Thecockt. There is no distinction between the settlement of children with the father or mother, for they are a-s much, her'sas the father's, and nature obliges her as much as the father to provide for them ; so does the law ; and every argument that holds from their settlement with the father, holds ^ to their settlement with the mother. The reason why cmldren shall not gain a settlement where the wife gains a settlement only by intermarriage is, because it is not tar family, but her husband's, and she cannot give the chitdroa any sustenance without the husband's leave. She is
cqnallv punishable with her husband for deserting her children, and therefore could not leave them behind her; these children certainly gained a settlement with their mother. 2 Ld. Ruym. 1474.
So in the K. v. Wooden, Hi'. 13 Geo. 1.—A man was set. tied at Wooden, and died ; his widow then removed with hei only child (the pauper), fourteen years of age, to Paul. fwry, on an < state w hich was her ow n lor life. The paupei lhed with her mother there two years. It was contended that ' the widow having gained a new settlement after herhus • band's death, their daughter gained a settlement also 3 'part of her family.' And it was insisted, that there is no differ ence between the effect of a settlement gained by thefa/hc or the tnotlter jn such a case as this: the mother being oblige to provide for the children in the same manner as the fatht was when living. That she could not leave her daughter, nc could her daughter be removed from her: and to this purpot the last mentioned case of St. George's v. St. Katharine's wi cited. The court therefore determined the daughter to bese tied at Paulpury. 2 Ld. Ruynt. 1473.
S> also io the case of the A", v. Barti.n Titrfc, TV. 8 & Geo. 2. A man hired a farm of the yearly value of an hu dred pounds iu Barton 'J'tirfe, where, alter serving the office overseer,he died. After his death, his widow removed fri thence to llappisburgh, and dwelt there iu a house and \\\ miscs given to her by the will of her fa'her: andDc6.ro/iI daughter, being then of the ajjc of thirteen years, went a lived there with hir mother as part of her family, for about * year and a half. The Court determined that the. dauj ter gained a new [settlement in liuppislurgh by living v* her mother there, as part of her family, upon the r ther's own estate ; for j>er Page J. ^V here the n other goe: an estate of her o«n, from which the is irremovable, a cl may, after thejatlrer's death, gain a settlement under The I Tiilr as well as it could under Tiit »Aintn. liui re Sett. Cas. 40.
So also in the K. v. Oullon, Mic, 9 Geo. 1. It appqs that the faihi-r was settled at Unit-, n. uuu that the mother a his death had removed wiJh her children to another place, continued there fur three mouths and upwards, on an tate of hei own. The court said it had been often ho that a child after the death of the fattier, may gain a settle under the mother, as well a* it might belore under the lu Harrow's S.-tt. Cas. Cl. Noth« l.avii* But a mother, during the life of her husband, cannot a sciiltiuint municate a settlement io her children, different troni that -v dwriiic c life they derive from their father by parentage; for in lie*/.•tUKU..br.ud.tf(.<,</ ,.. ^1. Mary Kortli Church, La. 8 Geo. 2. the fatht away, anj the mother resided on an estate devised to her. justices made an order to runo»e the children to the JTu, settlement; and the questiou wus, Whether as this cu_s< erecnistaneed, the children were not settled with the mother? —By Hardaick^ Ch. J. As this case is stated, the mother cannot gain a settlement for her children; the father whilst alive, is the head of the family; and the children must derive their settlements through him. A? to the case of foreigners or Scotch. pes who haTe no settlement, they are singular cases; and the rifegainsa settlement through necessity : but there ncvev was in instance where the wife was held to acq'iire oie during the life of her husband. The husband, in ri;ht of his wife, has a title to lire on his wif»;'s estate, bnt he can gain no settlement there without a residence for forty days. There must be, in all eases, an inhabitarry: the wife's inhabitancy with her children is not the inhabitancy of her husband. A feme covert cannot by residence sain a settlement for her husband.—r^o^e, Probyn. and Lee, Jnsticcs, agreed; but the mutter was afterwards referred to the judges of assize. 1 liott, Count's ed. J6. 5 Seu. Cus. 1S<2.
It 'n agreed, that children shall continue with their parents At what aca as nnrsecfiildrcn and part of their family, until seven years of children may . *ff, and that during that time, they of necessity must follow J,'TM"TM! the settlement of the parent, and cannot gain a settlement tiVei'r (>ur«nu, in tlieirown right ; bat after they have attained to seven years and sain settle* »f age th.-y may gain a settlement by their own act*; aud menu lor therefore when children are. removed in consequence of their llle,"jel,es" father's settlement, either the ages of the children mast be set out to shew they are of such tender years as not to have gained a settlement for themselves, or there must be an express adjudication of their having gained no other settlement. 1 Salkeld, 470. Gu. Sett. $ Rent. 17. 1 Bo't, Const't ed. 25, pi. 50.
A child Who on the removal of his father into another parish Whot «hall b« L< left behind, and continues to work for himself, is divided de<M"tri frwahij father's family, and cannot derive.a new settlement cmanclt>a"oni from any that his father may subsequently acquire. E(l<izSoodhey v. Wei1soGdhey,Tr. 1 Geo.l. upon appeal from an order of'two Justices for the removal of a man and his wife, and their son under leven years, from the parish of H'ettuoodkei/ to the parish of Ea*S9odher/,thc sessions state the facts specially for the opinion of the court:—That,forty years since,the father of this man was settled at Hamp^tend Mardi d, w here he had a son, the present panper.then eight years old: tt.ath* ihea removed withal: his family to C'nra/j/.and afterwards,Living purchased a copyhold estate °f 1 li. per ann. in ti'etticooiihcy, he removed thither with his son, injsengnts, and served churchwarden and other parish-offices, *«d paid taxes, till he purchased a cottage trf I/. 12*. 6d. per •via. in Eastxovdhey, when he went and lived upon it till his death: k but they state it specially, that the sou, the present 'pauper, staid behind in IVe.-twoodhey, where he married a
* Ki by being bound out an apprentice, and residing and lodging n a paruh for forty days, under the indenture; or by any olhet raeaai by which an independent settlement may be acquired.
'wife and has worked ever since on his own account, and that 'he is 'hiri v years old.' Upon the whole, the sessions con. firmed the order of the two justices for his settlement at East. uoodhey.—It was moTcd to quash the order of sessions, fur 'that the settlement of the son is cither atllampstead Marshal, where he was burn, and where he lived till eight years old ;or if it should be carried so far as that he gained a new settlement with the father, by removing with him as part of his family, yet that can carry him no farther than U'estzooodhey, which is the lust place to which he accompanied hit father; but let the settlement be in either, it is not material now, the only question being, Whether here is any settlement in Easltcoodhrij? for which there is no colour.—On the other side it was insisted, that, let the son be of what age he will, he shall follow the settlement of the father, till he gains one by his own acquisition: and it appearing he had never done any thing to gain a settlement by any act of his own, either in Hampstead Marshal, Chevely, or fl'estzeoodhey, then he must follow the settlement of the father as well in Easttvoodhry, as in any of the rest Pratt, Ch. J. The question is not where this man and hi! father are settled, but whether there appears a settlement o liitn in Easlisoodhey. If he had gone thither with his fathc as part of the family, possibly it might have been a settle meat of bim there; but by staying behind ho was divide) from his father, andtherefore there is no colour to make it settlement in Easticoodhey. I think his settlement is in West uoodhey, which was the last place where he lived as part of th father's family. The other judges agreed, and the order ws quashed. 1 Strange, 438.
So a son, who, when 19 years of age, leaves his father's fa mily and goes into another parish, where he marries and h; children, is emancipated, and cannot derive a new setllemct from any that may be subsequently acquired by his parent.—S Michael in Norwich v. St. Matthew, Ipswich, Ea. 1 Geo. 2, tw justices made an order to remove a roan with his wife and tin i children,from St. Michael in Norwich to St.Matthew in Jpszcic \ and upon appeal, the sessions stated the following case: Tl father of the present pauper, the father of the said children, w settled at Shtpton Mallet, and on his removing from thence lirtiton \\m\ a writing given him from Shepton Mallet, acknox lodging that he was legally settled there. lie continued und this certificate for more than twenty years in Bruton, where t present pauper, the father of these children, was born, and co tinucd to live with, and as part of his father's family, followl his father's business of a wool-comber, until he was nineUyears of age; at which period he left his father's house, a went to reside in the city of Norwich, where he successive married two wives, and had the children now removed. Sub quent to the birth of these children,the grandfather gained a n settlement in 'St. Matthew, Ipswich: but the pauper his sc 'the father of these childrenxhath never lited Willi him at 1]