« EdellinenJatka »
the parish, if unincumbered with a certificate, and that whether he acquired the property by operation of law, or by his own act. (1) Thus, it may be gained by residence on a freehold (2), or leasehold interest, obtained by purchase (3), or descent (4); on a copyhold surrendered to a wife by her father (5), or devised to her by will (6), or by the widow's quarantine. (7)
It is determined also that a settlement acquired by the head of the family in the certificated parish, will be communicated to his unemancipated children whether they are named in the certificate or not. (8)
The 9 Geo. I. extends to estates purchased for a pecu- 9Geo.I. c.7% niary consideration by persons residing under a certificate so as to prevent the gaining a settlement, unless the purchase is bona fide of an estate of 30l. value. (9) It has been doubted whether one could be obtained since that act, by any estate acquired under a voluntary grant, without a money consideration. (10)
But it was afterwards held, that a conveyance from father to son was clearly no purchase within 9 Geo. I. c. 7., notwithstanding part of the consideration was 10%. in money, and that the son's certificate was avoided by a residence of forty days after the grant of this estate. (11)
(1) Rex v. Cold Ashton, Burr. S. C. 444. ante, 82. (4).
(2) Rex v. Deddington, Burr. S. C. 220.
(3) Rex v. Stansfield, Burr. S. C. 205. Rex v. Deddington, supra, (2); Ivinghoe v. Stonebridge, 1 Stra. 265.
(4) Rex v. Cold Ashton, supra,(1).
(5) Rex v. East Woodhay, ante, 186. (4). Rex v. Ingleton, Burr. S. C. 560.
(6) Rex v. Shenston, Burr. S. C. 468. Rex v. Woburn, Burr. S. C. 785. (7) Rex v. Long Wittenham, Cald. 474.
(8) Rex v. Leek Wooton, 16 East, 118. and see Rex v. Hardwick, 11 East, 578. Rex v. Cold Ashton, supra, (1).
Rex v. Deddington,
(9) Rex v. Dunchurch, Burr. S. C. 553. ante, 81. (2).
(10) Rex v. Warblington, 1 Term Rep. 241.
(11) Rex v. Ufton, 3 Term Rep. 251. See also Rex v. Ingleton, supra, (5).
A certificate is likewise discharged by subsequent residence on an estate, conveyed to the pauper, previous to his being certificated (1), or by residence under similar circumstances, on a tenement of the annual value of 107. taken previously. For the statute which requires the taking of a tenement, does not say whether the taking shall be before or after the certificate is granted; and the principle it goes upon is the ability to take, which exists equally in either case. (2)
6th, A certificate continues as to any person who is expressly named therein, until discharged by some act immediately affecting himself; for he is to be considered in the same situation as if the parish had granted a distinct certificate to him (3), and consequently his family reside under it, and are affected by it. (4)
But the settlement of an unemancipated child shifts into the certificated parish with that of the father, although it be named in the certificate.
The pauper's grandfather J. B. rented a tenement in M. being of the yearly value of 10l. at 67. a-year. His son M. B. came to reside with him in M., and about a month afterwards, the grandfather died, devising his interest in the tenement to his son M. B. and making him his executor, who continued therein many years, and paid the last rent due from the grandfather J. B. as his executor. About a year afterwards, and while in possession of the tenement, M. B. applied for and obtained a certificate from the parish of W. to that of M., in which the pauper, being then about twelve years old, was expressly named, and thereby acknowledged to be legally
(1) Rex v. Ufton, ante, 187, (11).
(2) Rex v. Findern, Cald. 426., where the pauper had taken the tenement one month prior to his obtaining the certificate. Rex v. Leek Wooton, 16 East, 118. post, 189. (3).
(3) Rex v. Testerton, 5 Term Rep. 258. Rex v. Keel, ante, 185. (1). (4) Rex v. Bath Easton, 8 Term Rep. 446.
settled in W. The court were of opinion that he followed his father's settlement acquired by residence on the tenement devised to him by the grandfather J. B.: "For the legislature evidently meant [in 8 & 9 W. III. c.30. and 9&10 W. III. c.11.] that the certificate should be entire to protect the pater familias and the family whether named or not; and this naming of any of the family is a mere matter of convenience, the more easily to identify them, but is not directed to be done by the legislature, nor are any powers taken away from or given to such children on account of their being named or not named in the certificate. It is mere artificial reasoning which makes a distinction between such of the children as are and such as are not named in the certificate; a distinction which the act itself does not make." (1) "The language of Lord Mansfield is founded in reason, and not opposed by the act, that the children of all parents must have the settlement of their father until they acquire another for themselves, and that therefore the pauper in this case continuing part of the father's family at the time, derived the settlement from him, and was not repelled from it by the circumstance of being named in the certificate." (2) If such were not the true construction of the act, the inconvenience would follow, that however young the children might be coming with their father into the parish with a certificate naming them, if the father gained a new settlement there, he would be settled in one parish and the children in another. (3)
(1) Verba Lord Ellenborough C.J. Yet quære whether the expressly naming persons in a certificate, who would otherwise be included under the general denomination of family, may not have been intended in many instances to save the trouble of granting other certificates, and extend its protection to such children after they cease to be part of their father's family, without affecting their condition while they continue members of it; as for instance, in case of the father's death, or the certificates being abandoned by him. See the opinion of Le Blanc J., 16 East, 124. Also, Rex v. Idle, 2 B. & A. 149.
(2) Eod. Jud. Ibid.
(3) Per Bayley J., Ibid. Rex v. Leek Wooton, 16 East, 118.
7th, It is discharged as to those who reside under the general description of part of the family,by their ceasing to be so from becoming emancipated. (1) Although personally referred to in the certificate under the general terms of "the child born or to be born." (2)
The pauper's father resided in A. under a certificate from M., but the pauper was not named in the certificate. When about twelve years old, his father being dead and he residing with his mother in A. under the certificate, he was bound apprentice by the overseers of M. to one L. of M. until twenty-one. After serving L. seven years in M. he returned with his master's consent to serve one G. in A., where his mother and family resided under the certificate. He continued to serve G. there until twentyone, and never returned to his mother's house as part of her family, but immediately hired himself for a year and served a year with G. in the parish of A., and so continued in the service for four years successively with the same master. He thereby gained a settlement in A. For when a child not named in the certificate separates himself from his father's family at an age when he is by law capable of supporting himself, he shall neither derive a settlement subsequently acquired by his father, or be prevented by the certificate from gaining one for himself. Whatever divests a child of the capacity to gain a settlement as one of his father's family, divests him of the incapacity to acquire one for himself. (3)
But a certificate is not determined in all cases as to those who have resided as members of the family, by the death of the person to whom it was originally granted. A man and his wife came into a parish, under a certifi
(1) Rex v. Darlington, ante, 174. (2). Rex v. Bugden, Burr. S. C. 270. ante, Vol. I. Rex v. Heath, ante, 181. (4). Rex v. Hampton, ante, 156. (3). Rex v. Mortlake, 6 East, 397.
(2) Rex v. Thwaites, 1 M. & S. 669.; and see the distinction between this and the cases, n. (1); and Rex v. Sowerby, ante, 179.
(3) Rex v. Morley, 2 M. & S. 417.
cate; the woman dying, the husband married again, and the second wife was held to reside under its protection after her husband's death. (1) A pauper born in the parish, where his father resided under a certificate, was put out apprentice there; his father died six months before the expiration of his apprenticeship, yet the certificate was not considered as determined by the death, so as to enable the apprentice to acquire a settlement, for he came into the parish, and resided under its protection. (2)
If a certificate is discharged by any of these means, all who reside under it, whether as natural parts of the family, as apprentices, or as servants, are restored to their capacity of acquiring settlements in the parish as if it never had existed.
It is necessary for those who wish to get rid of a cer- Must show it tificate, to show some matter in discharge of it. As if discharged. they rely upon a subsequent settlement by estate, under a voluntary grant, the onus probandi is on them, that the grant is voluntary; it does not lie on the other side to prove it a grant, for a valuable consideration: whoever wants to set aside that which has once existed, must show something which destroys it. (3)
But where the pauper's grandfather came into S. under a certificate in 1727, and the pauper was relieved by S. while resident in other parishes; he was considered as settled there, although no other evidence was given of his father or grandfather having gained a settlement since the certificate. For there was ample time for the father's being emancipated as well as the pauper, and there was no reason why S. should have relieved the pauper while residing in other parishes, if they had not known that he was settled with them. (4)
(1) Rex v. Hampton, ante, 174. (7), 179.(1), Buller J. dissent. (2) Rex v. Alfreton, 7 Term Rep. 471.; and see Rex v. Keel, ante, 185. (1).
(3) Per Ashhurst and Buller J., Rex v. Warblington, 1 Term Rep. 241. (4) Rex v. Stanley cum Wrenthorpe, East, 52 Geo. III. 15 East, 580.
Presumed discharged after