C done.' But if the sessions wished to know whether, from the evidence stated relative to the hiring of the pauper's father, they were at liberty to draw the conclusion of his having been hired for a year in fact, the Court had no hesitation in thinking that they might legally draw such an inference. He therefore thought that this advice of the Court might be given to the magistrates, without the necessity of entering any regular judg ment upon this case as it now stood, or patting the parties to the expence of stating the case again. The counsel then shortly mentioned, that, in order to prove a settlement by hiring and service, it was esentially necessary to prove a contract between the parties, and that such contract could not be infer red merely from the act of service.-But by lord Kenyon Ch. J. This is a case of a servant in husbandry, whose service for a year affords very strong presumptive evidence of an hiring for a year*. 'But however strong that presumption is, as only the ' evidence of the hiring is stated, and not the fact itself, we cannot decide upon the case,' though the justices at the general sessions must be directed to draw the conclusion that the pauper's father was hired for a year, from this evidence. 5 Term Rep. 327.

And if the settlement depend on a written instrument, if it be not produced, it must be shewn that enquiry has been made after it.t-Thus in the K. v. St. Seppichre's London, Ter. 25 Geo. 3, the pauper was born in St. Lake, Ola Street, and nineteen years ago married her late husband, who died about a year and a half ago; some time before his death he informed the Secretary of the Lying-in-hospital in lid desex, in her presence and hearing, that he was, before his mariage, a written articled servant for two years to Richard Spital in the Old Bailey, in the parish of St. Sepulchre; and that he duly served him in the said parish two years under the said articles; and that the service was completed before his marriage with the pauper; and that he worked at buckle.cutting, and received one guinea per week, and lodged and boarded in the house of his master, for which he paid nine shillings per week. It appeared that the master had been dead about twelve years; and that the pauper never saw the 'articles under which her husband served; nor were the said articles produced at the hearing of the appeal; nor was *any evidence given of any enquiry after them.'—It was urged, that this was good evidence, and that it is an invariable rule at all the sessions to receive evidence of what the husband or father said, when dead, or run away, as to facts concerning the settlement, though not generally that he w.s settled.-By Willis J. (lord Mansfield being absent), The first question is, Whether the declarations of the husband are

Because by 5 Eliz. c. 4, such servants are to be retained for a year. See title SERVANTS, head iii.

See the like point as to a settlement by apprenticeship, in the case of the K. v. St. Michael's Bath, in f. 56 supra.

admissible? In general, such declarations certainly are not; but the usage at sessions is not so strict. On this point I think the order might be supported. But it is not necessary to 'give an express opinion; because on the other point the case seems to be weak;' for it is found that no enquiry was made after the agreement, and what is said in the case of St. Michael's Bath *, is decisive to shew that such enquiry is necessary.-Ashhurst J. There is no occasion to give an opinion on the first point; not that I should have any difficulty concerning it. On the second point, there is no rule better established than that the best evidence must be given: there 'were places here where an enquiry might have been made ;' the master's executors should have been applied to, or if, on enqui ry, it appeared that he had none, that might have been sufficient. ---Buller J. I am of the same opinion, the presumption is, that there were two parts of this agreement; but it is not even inquired, whether the pauper had left any papers. • Although it may be probable that the agreement would not have been found, yet an enquiry after it must be shewn.' 2 Bott, Const's ed. 539. Caldecot's Cases, 547.

V. Settlement by marriage.

By 26 Geo. 2. c. 33, all marriages solemnized after 25th March 1754, in any other places than a church or public chapel, where banns have been usually published†, unless

* See p. 55 supra.

+ Where banns have been usually published.] In the construction of these words, it was held in the K. v. Northfield, Ea. 21 Geo. 3, that all marriages solemnized in churches or chapels, erected since the marriage act,' and in which banns had not usually been published, before or at the time of passing the said act, were void. But as this decision was likely to affect the peace of numerous families, it was afterwards enacted

The case of the K. v. Northfield, which occasioned the passing of this statute, as above observed, was as follows:-The pauper (who was the widow of one Jones) being whilst sole, a settled inhabitant at King's Norton, in 1775 intermarried with the said Jones, a settled inhabitant at Northfield, at Brierly-Hill chapel, in the parish of Kingswinford, in the county of Stafford; which was erected in the year 1765, and then duly consecrated;' and in which divine service had been publicly and regularly celebrated ever since; and wherein banns of marriage had been often published, and marriages celebrated previous to the marriage in question; the said chapel was a new one, erected since the marriage act;' and not erected on the foundation of one that was ancient; and no act of parliament obtained for erecting the said chapel, or for celebrating marriages there. It was contended, that the word usually, on a sound construction, must be referred to the time of celebrating the marriage, and not to the time of

'by special licence from the archbishop of Canterbury, or that 'shall be solemnized without publication of banns or licence 'of marriage from a person having authority to grant the 'same, first had: shall be null and void to all intents and pur. 'poses whatsoever.' s. 8.

Also all marriages solemnized by licence after 25th March '1754, where either of the parties, not being a widower or 'widow, shall be under the age of twenty-one years, which 'shall be had without the consent of the father, or such of the 'parties, so under age (if then living) first obtained, 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 unmarri'ad); or if there shall be no mother living and unmarried, then. of a guardian appointed by the Court of Chancery; shall be 'absolutely null and void to all intents and purposes whatso'ever.' s. 11.

But this act shall not extend to the marriage of any of the royal family;—neither shall it extend to Scotland,--nor to any marriages amongst the people called Quakers; or amongst the person professing the Jewish religion, where both the parties to any such marriage shall be of the people called Quakers, or person professing the Jewish religion respectively-nor to any marriages solemnized beyond the seas. s. 17, 18.

by 21 Geo. 3. c. 53, that all marriages already solemnized er to be solemnized before the 1st day of August 1781, in any church or public chapel, erected since the making of the 'said act, and consecrated, shall be as good and valid in law, as if such marriages had been solemnized in parish-churches or public chapels, having chapelries annexed, and wherein banns had been usually published, before or at the time of passing the said act; and the registers of such marriages were to be ⚫ removed into the parish church.' s. 1, 3.

passing the act; but that if it did, yet the legality of such acts performed there, must now be taken as established by usage, that usage having been uniform from the time of its erection. To this it was answered, that by the express words of the statute, all mariages not solemnized in places where banns have been usually published on the 25th of March 1754, are declared void that a succession of illegal acts could never be made a foundation of legal title; that no length of time, no custom could ever make that law, which originated in opposition to the provisions of the law. And by lord Mansfield Ch. 1. The interposition of the legislature may confirm the marriages celebrated in this chapel; but the act clearly meant churches or chapels existing at the time, and in which banns were then usually published.' If, as is admitted, the first marriage was bad, so must every succeeding one be. A number of instances all void, cannot make a foundation for a legal usage. This case comes directly within the provisions of the art, and the marriage is void.-Willes, Ashhurst and Buller Justices concurred Caldecol's Cases, 115. 2 Doug. 8vo. ed. 659. VOL, IV.

Shall be null and void to all intents and purposes whatso ever.] As a marriage celebrated contrary to this act is void to all intents and purposes whatsoever; neither the woman s married, nor her children, can gain any settlement therebyThus in the K. v. Preston, Mic. 33 Geo. 2, two justices remo ved Edward Young and Rebecca his wife and Mary their chil from Chilham to Preston.-The sessions on appeal confirme the order in all its points, stating the following case:-Youn being legally settled at Preston, and not being then a widowe was, without the consent of his father, who was then livin married by licence in the parish church of Teynham, to R becca Drury, who was then settled in the said parish; the s Young being then an infant of twenty years of age; and af the said marriage, the said Rebecca was brought-to-bed in parish of Chilham of the said Mary, removed by the said ord

It was objected, that the marriage was, by the exp words of the marriage act, absolutely null and void.'—On other side it was urged, that the word void may be constr voidable also; that it is highly unreasonable that a virti young woman and her innocent children should be turned ad considered as a whore, and as bastards, without having opportunity to contend so severe a judgment against th therefore, that this marriage ought to be avoided by senten the Ecclesiastical Court, and not in a collateral method by ex parte order of justices, made without hearing them, or person on their behalf.-But by lord Mansfield Ch. J. point will admit of no manner of doubt; there is this] distinction between things void and voidable; where the makes a thing void for the benefit of the parties concer they may waive that advantage if they please. But the riage act is avowedly made against both the contracting ties, and therefore they shall not waive the disabilities of their own option; the marriage is void and null to all in and purposes, even though the parties should afterwards to it, whenever the fact appears directly contrary to the sta AND BY THE WHOLE COURT. Let the order be quashe to Rebecca and the child, and confirmed as to the pauper ward. Burrow's Sett. Cas. 486. Black, Rep. 192.

So in the K. v. Hodnett, Hil. 26 Geo. 3, Mary Miles Ann her infant daughter, were removed from Stanton to nett, THE SESSIONS confirmed the order, and stated the foll case-Mury Miles, an illegitimate child, was born in th rish of Hodnett. On the 10th of January 1782, she then under twenty-one years of age, was married to R Teece, who was born in the parish of Stanton upon Heath, and who was also then under 21 years of age, an gitimate, by a licence. The putative father of Richard died in 1779, and his mother in 1764. The putative fat Mary Miles died several years previous to her marriage her mother in the year 1772, married Richard Lowe, w well as his wife, is still living. Neither Richard Tee

husband, nor Mary Miles the wife, had ever any guardians appointed for either of them, nor was any consent given to their marriage by any person acting in that character, or by the parents on either side. Richard Teece (who applied for the licence) swore that the parties were both of age.-The question for the opinion of the Court turned on the validity of this mar. riage.--And it was contended, that it did not extend to illegiti mate children. But by lord Mansfield Ch. J. The meaning of the act is, that where there is the consent of a father or guar dian lawfully appointed, or of a mother, or guardian appointed by the court of Chancery, the marriage shall be valid; but here there was no consent by any one; consequently, in my opinion, It is roid by the marriage act. There is no reason to except illegitimate children, for they are within the mischiefs intended to be remedied by the act.--Ashhurst J. There is no inconvenience in putting this construction upon the act; for per sons in this situation may marry by banns.-Buller J. concarred. He said the words of the act are very general; the act speaks of all persons, except under particular circumstances; then does this come within any of these exceptions? If it does not, it falls under the general regulations established by the act. 1 Term Rep. 95.

But the marriage of a bastard under age, with the consent of the putative father, is sufficient to gain a settlement-Thus in the K. v. Edmonton, Ea. 24 Geo. 3, the pauper was removed from Enfield to Edmonton, as to her married settlement. The sessions confirmed the order, and stated, that her settlement, the time of her marriage, was at Enfield, and the settlement of her husband, at the time of the removal, was at Edmonton; that they were married by licence, being both minors, and the lice was obtained by the consent of both fathers; and the husband's father did, at the time of giving such consent, make the usual affidavit that he was the natural and lawful father, that he gave evidence at the sessions that the pauper's husband was bis son, but that he was never married to his mother.—It was objected, that the marriage was void, that a bastard may be married by banns; and his condition is not worse than that of a lawful child who has lost his parents. For if he wishes to be married. by licence, he must apply to Chancery for a guar dan-But by Willes J. As to the construction of the marrage act, it ought in this case to be liberal. We are warranted in considering a putative father as within it. The object of the marriage act was to prevent clandestine marriages of minors, without the consent of those who have authority over them. That purpose is better answered by the consent of a putative father, than of a guardian in Chancery.-Ashhurst J.-concurd. Butter J. also concurred, and said: The fact is, that the son, being a bastard, was married by licence, while he was ander age, with the consent of his putative father. It is not necessary to give a decisive opinion on the construction of the marriage act for either this case is within the act, or it is