35 Geo.III. c.101. con

fines it to persons actually chargeable.

BESIDES the

PART III. SECT. I.

Of 35 Geo.III. c.101.

general regulations introduced by 8& 9 W. III. c. 31. and 9&10 W. III. c.3. respecting certificated persons, the legislature extended the privilege of irremovability to various trades, callings, and descriptions of persons by partial statutes. But it is unnecessary to notice these particular enactments. (1) For although these acts are not repealed (2), the general law 35 Geo.III. c.101. (3), has rendered all persons irremovable until they become actually chargeable to the Except, 1. Per parish or place which they inhabit (4), except, 1st, persons convicted of larceny or other felony; 2d, rogues, vagabonds, idle or disorderly persons, and such as shall appear upon the oath of one or more credible witness to

sons convict of

felony.

2. Rogues and vagabonds.

(1) Mariners and soldiers exercising a trade, 3 Geo. III. c. 8. 22 Geo. Ill. c. 44. 42 Geo. III. c. 69. 56 Geo.III. c. 57. Gate-keepers or persons renting turnpike tolls, and residing in the toll-house, 15 Geo.III. c. 84. s. 56. Officers, mariners, soldiers, and marines, serving since 1763, and their wives and children, 24 Geo. III. c.3. Officers and soldiers in the militia, drawn by ballot, or any of the fencible regiments, 24 Geo.III. c. 6. s. 4. Married militia-men serving, when drawn out into actual service, 26 Geo.lII. c.107. s. 131. Their wives and families, 43 Geo. III. c. 47. s. 8. Certificated members of benefit societies, 33 Geo.III. c.54. s. 17. Rex v. Idle, 2 B. & A. 149. It has been decided, that 22 Geo. III. c. 44. and 26 Geo.III. c.107., were made in pari materia, and extend only to such mariners, soldiers, and married militia-men, as are traders, and not to husbandmen. Rex v. Gwenop, 3 Term Rep. 133. 2 Bott, 542. Pl. 544. Persons having served apprenticeship to the trade of a woolcomber, or otherwise entitled to exercise it, may set up that or any other trade for which they are able, without being removable, 35 Geo.III. c.124. In order to prevent the settlement of an apprentice bound to a master residing under a certificate from a friendly society by 53 Geo.III. c.54. it is not enough for the certificated parish merely to produce the certificate upon hearing the appeal against an order removing the apprentice there; but they must likewise show that such certificate had been delivered to the parish officers as mentioned in sect. xvii. of the act before the service of the apprentice. Rex v. Egremont, 14 East, 253. (2) Rex v. Idle, 2 B. & A. 149.

(5) See Vol. III.

(4) Sect. 1.

be persons of evil fame, or reputed thieves, and not able to give a satisfactory account of themselves and their way of living (1); 3d, unmarried women with child shall be 3. Pregnant taken, and deemed actually chargeable, &c. (2)

unmarried

women.

No case has occurred which defines the import of the Meaning of terms "becoming actually chargeable," as used in the "actually chargeable, " first section of this act. But the phrase seems to retain in 35 Geo.III. the meaning it had previously acquired in settlement-law, c.101. viz. becoming a burthen to the parish by the actual : receipt of relief.

9 & 10 W.III. c 11. made

The statute was designed to give a more general effect Same as in to those provisions in 9&10 W.III. c.11., which enabled poor persons to quit their places of settlement for pari materia. the purpose of a livelihood, and, at the same time, to remove the inconveniences which arose from granting certificates. The decisions, therefore, upon the act of William, may be considered as applicable to the 35 G.III. c.101. being made in pari materia.

1st, It has been determined upon the certificate act, that none but those who are become actually chargeable to the parish can be removed from it.

A grandfather resided with his family under a certificate. He had a son who married, and took a house in

and

Under 9 & 10
W.III. c.11.

none remov

able but those
actually
chargeable.
If A. and his
family not re-

sidents with

his father ask relief, the lat

ter is not

the same parish, and resided apart from his father. The son, and his child (after the son's death), had asked obtained relief with the grandfather's knowledge; but thereby neither the grandfather, nor any of his family residing chargeable. with him, asked or obtained relief, or became personally chargeable to the parish. Lord Kenyon C. J. "The single question is, whether the persons who have been removed can, in the fair sense of the words, be said to be actually chargeable to the parish? Now, it is negatived by the case that any of these persons received relief in

Unmarried

person.
But it is contended, that they were virtually
relieved, because the son and the grandson both received
relief. But it must be observed, that at that time they
were not members of the family of the pater familias now
removed; they lived apart from him, and formed another
family of themselves. Then it has been said, that a
burthen has been thrown upon the parish by the relief of
the son and grandson, and therefore that the grandfather
was virtually chargeable, because the 43 Eliz. requires
fathers and grandfathers to support their children and
grandchildren. But that proposition hastens to a con-
clusion too soon: for by that statute they are not, at all
events, to maintain their grandchildren, &c. but only
where they are of sufficient ability. Now the justices are
the proper judges of that ability; and the grandfathers,
&c. are only to be called upon by an order of justices.” (1)

Further, it is not a suficient ground for the removal
of a certificated person, that their unmarried daughter,
though residing in the house, is with child.
For non
constat that it will be born a bastard, and though
probable, it is not certain that any burthen will fall on
the parish, for she may be married before she is brought
to bed. (2)

Also, where a man residing with his family, under a daughter aged certificate, had a daughter living with him of the age of 18, with child, asks relief; eighteen, who being pregnant of a child, afterwards born a father not bastard, asked relief for herself only: Aston J. said, “that chargeable. Semble. he was inclined to be of opinion, that if several persons resided in a parish under the same certificate, the asking relief by a single one of them would not render the rest removable." (3)

(1) Rex v. St. Mary Westport, 3 Term Rep. 44.

(2) Per Lord Kenyon C. J., ibid.

(3) Rex v. Framlingham, Burr. S. C. 748. 2 Bott, 539. Pl. 552. There seems to be but one direct determination, as to how far the head of a family becomes chargeable, and therefore removable by any of its subordinate members becoming so. It is laid down in Waltham ». Sparks, Skin, 566. Comb. 321., that a father who is by nature bound to

from an officer.

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 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 enacts, that unmarried women with child shall be deemed actually chargeable, and may be removed as such, extends to those who reside under a certificate. For although a woman 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)

66

35 Geo.III.

c.101. extends to pregnant single women, residing under certificates.

It has been likewise held, that a married woman who, in Also to a marthe absence of her husband abroad, is pregnant under such ried one. circumstances, as that the child would be deemed by law a bastard, is liable to be removed under the 35 Geo. III., though the words of the act are, every unmarried woman with child;" for "the legislature plainly had in view, that every woman pregnant of a child which was not protected by the matrimony of the parents, but would when born be a bastard, should be removable, whether married or unmarried: for though the mother were married, yet if her

maintain his children, being unable to do so, is in that respect impotent and chargeable to the parish. Different questions might be made respecting different members of a family: 1st, The wife; 2d, Unemancipated children living with the parent, and able to work for their support; 3d, Unemancipated children disabled from labour by sickness or infancy; 4th, Apprentices unwilling to dissolve their indentures. 5th, The case of emancipated children seems directly considered by Lord Kenyon in Rex v. St. Mary Westport, ante, 196. See Jane Carr's case, Rex v. Overseers of St. Mary in Carlisle, Cald. 76.

(1) Rex v. Kingswood, Burr. S. C. 392.

(2) Ib. and see Great Bedwin v. Wilcot, Burr. S. C. 163. post.

(3) See Rex v. St. Mary Westport, ante, 196.

(4) Rex v. Great Yarmouth, 8 Term Rep. 68.

Object of 55 Geo.III.

only to prevent removal of persons likely to become chargeable, until actually so. Does not empower the re

moval of a single woman of substance, if pregnant; nor a pregnant

servant maid against her master's con

sent.

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, 5 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.

(5) Rex v. Tibbenham, chap. xx. sect.iv. parti.

(1).

(6) Rex v. Inskip with Sowerby, 5 M. & S. 299. post; and see as to

the form of the order, ibid.