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2d. The party must become an actual charge and bur- 2. Party must then to the parish, by receiving relief out of the poor's receive relief from an officer. fund. The asking relief from a parish officer, without receiving it, does not render him chargeable. (1) Neither does the actual receipt of relief from an inhabitant who is not an officer. (2)
It has been decided, that 35 Geo.III. c.101. s.6. which c.101. extends enacts, that unmarried women with child shall be deemed to pregnant actually chargeable, and may be removed as such, extends single women, to those who reside under a certificate. For although a woresiding under certificates. man in this condition was not removable under 9&10W.III. c.11., solely on that account, as one actually chargeable to the parish (3), yet the words of 35 Geo.III. are sufficiently comprehensive to include her, and there is no reason to narrow the construction, so as to prevent its extending to a case that wanted a remedy. (4)
It has been likewise held, that a married woman who, in Also to a mar
the absence of her husband abroad, is pregnant under such ried one.
maintain his children, being unable to do so, is in that respect impotent
(2) Ib. and see Great Bedwin v. Wilcot, Burr. S. C. 163. post.
(4) Rex v. Great Yarmouth, 8 Term Rep. 68.
child would by law be a bastard, she was in pari jure within the scope of this act with an unmarried woman who was pregnant." (1)
The meaning of 35 Geo.III. c.101. was to prevent the removal of persons until actually chargeable, who were before removable if likely to become so; but not to make persons removable who were not proper objects of removal before that act. (2) Thus, a single woman who is pregnant, and a person of substance, cannot be removed. (3) It was held, also, that a single woman who was with child, and lived in service, could not be removed against her own or her master's consent, as one actually chargeable under this act. For the mere circumstances of a single woman's being with child, did not before the act operate as a dissolution of the contract of service, and make her liable to be removed, against the consent both of the master and servant. (4)
And in a subsequent case the court adhered to this opinion, that being pregnant with a child, which if born would be illegitimate, amounts to no more than presumptive chargeability, so as to put it on the party disputing that fact, to show that she is a person of substance; or as in Rex v. Alveley, that she is under a contract of hiring and service with another at the time, so as to rebut the presumption of being actually chargeable to the parish, and, consequently, liable to be removed. (5)
It will be well enough, however, if the complaint states premises from whence the conclusion of the pauper's being chargeable under 35 Geo.III. c.101. necessarily arises, provided the justices adjudge the pauper to be actually chargeable. (6)
(1) Rex v. Tibbenham, 9 East, 388.
(2) Per Lord Ellenborough C. J., Rex v. Alveley, 3 East, 563.
(3) Per Lawrence J., ib. Per Lord Ellenborough C. J., ibid.; and
Rex v. Tibbenham, supra, (1).
(4) Decided, ibid.; and see ante, Vol. I. supra, (1) n. (1).
(5) Rex v. Tibbenham, chap. xx. sect.iv. parti.
(6) Rex v. Inskip with Sowerby, 5 M. & S. 299. post; and see as to the form of the order, ibid.
Upon appeal against an order of two Justices, made on the 5th day of August 1823, for the removal of J. Asprey, with his wife and children, from the parish of St. Botolph, removable when actually in the town and county of Cambridge, to the parish of Ampthill, in the county of Bedford, the sessions confirmed though residthe order, subject to the opinion of this court on the following case.
ing on a tene
ment above the annual value of 10l., unless he has
actually gained settlement livery of the
before the de
per ann. rent,
nement is not
since that act, tenant must either pay or legally tender
The pauper, a rope-maker, being previously settled, by estate, in the parish of Ampthill, came with his family to reside, in Midsummer 1822, in a house in the parish of St. Botolph; he had hired it of one Mitchell for 10l. a year; he put his own furniture therein, worth 157. or 167.; he continued to live in it about a year; and in July last, being much distressed, he applied to the parish officers of St. Botolph for relief, who refused to give him any till ordered by a magistrate so to do, after being summoned to show cause why they did not; they then gave the pauper 14s. on the 31st of July, according to such order; the tax collectors during this month had seized a box, worth 17., for a quarter's tax of 3s. in arrear, and the pauper's wife had sold some furniture; but what remained in the house at this time was worth 147., a circumstance which was not communicated to the magistrate by the overseer when the order for relief was made: the day after this relief Mitchell called for his his rent. rent of 10., and gave the pauper a fortnight to pay it in; soon after this, the pauper and his family were removed to Ampthill under the above order of removal; he then applied to one Sturge, an auctioneer, to buy his furniture, to enable him to pay his rent. Sturge went to Cambridge, valued it at 131. 3s. exclusive of his tools, which were worth 5., and agreed to buy them for 107.; which sum he paid to the pauper, who kept the key of the house all the time, and returned to it about the 14th of August, on which day Mitchell had sent a person to distrain for the rent; but no distress was taken, because the bailiffs, Sturge, and the pauper, went together to Mitchell, and the rent was paid by the pauper with the 107. he received from Sturge. Another auctioneer had been employed to sell some of the
furniture, under the direction and according to the inven tory of Sturge, and sold it for 3l. 13s.; and after this sale, the remainder of the tools and furniture might be worth 67.; without the tools, the remaining furniture might be worth 11. The sessions decided that the house was not of the value of 10%. Nolan contended, first, that the pauper was not removable from the parish of St. Botolph, even if he had not gained a settlement there, because at the time the order was made he had been residing more than forty days upon a tenement of the value of 10l.; and, secondly, that under the circumstances stated in the case, he had acquired a settlement in that parish. Upon the first point, he observed, that by the ancient law a party was irremovable, unless he came into the parish in a state of vagrancy. The statute 13 & 14 Car. II. c. 12. did not, as was sometimes supposed, enable the incomer to acquire a settlement, but gave the justices power to remove any person, within forty days after he shall come to settle in tenement under the yearly value of 107. Its object was rather to prevent a settlement than to give one. The subsequent statutes, 1 Jac.II. c.17. and 3 W. & M. c. 11. refer to the forty days continuance in a parish in terms no further than as it was necessary "to make a settlement." They only prolong the power of removal beyond the original forty days, in cases where the party could have been removed antecedent to 13 & 14 Car. II. Hence it followed, that a person might be irremovable from a parish where he could not gain a settlement. Rexv. Leeds (1), and Rex v. Martley (2), are founded upon this principle, and show that a pauper residing, either upon a leasehold tenement or his own estate, may be irremovable, although his residence does not confer a settlement. It is true that the 13 & 14 Car.II. in rendering persons removable, refers to the value of the tenement; and in this case, the sessions have found the annual value to be less than 10%. But statutes which interfere with the subject's common right of choosing his place of residence, by such an arbitrary power as that of removal, are to be construed
strictly, so far as they restrain an Englishman's birthright, and liberally, so far as they protect it. The 59 Geo.III. c.50. annexes the acquisition of a settlement to a bona fide taking at a rent of 107., and payment of that rent without reference to the actual value. If the justices can investigate the value, in opposition to the rent paid, where there is no fraud, it will overturn the object of the statute, and reintroduce that uncertainty and litigation it was designed to avoid. To avoid these evils, the legislature referred to the rent paid, as the fair and conclusive criterion of the value of the premises. The finding therefore by the sessions that the rent exceeded the real value was irrelevant and impertinent; and being repugnant to their material finding as to the bonâ fide payment of rent, is to be dismissed from the court's consideration. The pauper resided on a tenement of the annual value of 10., within the meaning of the 59 Geo.III., and was irremovable. He dwelt there, and not in a state of vagrancy; and under the protection of a residence, by the possession of which he might finally become settled. He was no vagrant; he resided much more than forty days irremovable, and came neither within the letter nor the spirit of the 13&14 Car.II. It may also be urged, that he was not actually chargeable, for the case finds that he had property more than sufficient to pay his rent, and maintain himself at the time he received relief. Secondly, he gained a settlement in the parish of St. Botolph; for though at the time when the order was made he had not actually paid the rent, yet the landlord having afterwards given him time, (and it being in fact paid within the time allowed him, it must be considered as virtually paid when it became due, upon the principle that omnis ratihabitio retro trahitur et mandato æquiparatur,) he had an inchoate right to a settlement which was afterwards perfected any other construction would destroy this species of settlement. It could not be intended that to perfect the settlement, the rent must be paid the instant it becomes due. This seldom happens. Suppose the landlord is unwell, or absent, or dead, and his personal representative unknown, it would be unjust to hold that a tenant, able