1804. The KING against ants of MARTLEY. no settlement could be gained under the new lease, when the pauper lived on the estate in his own right; the purchase having been made by the pauper himself for a consideration under 301. in value. And though it may be said that this. The Inhabit was a voluntary grant of the dean and chapter, and not a purchase for a pecuniary consideration; yet, according to Rez v. Warburton (a), the consideration need not be in money paid at the time, in order to bring the purchase within the stat. 9 Geo. 1. c. 7. s. 5.; for there a grant of a copyhold, with 1s. fine, Is. heriot, and is. rent, was holden to be a purchase within the statute, which could not confer a settlement. And here is a fine of two guineas, and 1s. rent. [Lord Ellenborough C.]. There would be difficulty in deciding that this was a purchase under 301. within the statute; but admitting that, and presuming the third life under the first lease to be extinct, still, how can this order, removing the pauper from his own estate, be supported? This is an objection distinct from the question of the settlement.] In answer they observed, that this objection had not been made below. That here the pauper was actually chargeable before the order of removal, which differed it from the other cases. Where persons were heretofore removed, as likely to become chargeable, there could be no presumption of consent on their part. But where a man applies to a parish for relief, as here, he must be taken to consent to all things necessary to afford him that relief in the due course of law, and consequently to consent to a removal, under an order of justices, to the place of his last legal settlement, where he is properly maintainable. Then, if he consent, there is no disseisin of his freehold, which is the ground on which the illegality of a compulsive removal from a man's own estate is put by Foster J. in Rex v. Aythrop Rooding (a); which, however, was not a case of freehold, but of copyhold. But there the person removed was not chargeable: and though Foster J. thought that that would make no difference, yet Lord Mansfield and Dennison J. seem to have been of a different opinion, particularly the former, who said that the wife could not be removed from her husband's property, "upon being only likely to become chargeable." Then as in Clypton v. Ra (a) Term Rep. 241. VOL. V. (8) Burr. S. C. 433. D vistock, [ 43 ] 1804. The KING against The Inhabitants of vistock (b), it was decided, that magistrates could not make an order for the relief of a pauper on the parish to which he belonged, unless he were within the parish at the time; and as one who is possessed of property within a parish where he MARTLEY. resides, is not entitled to relief there as casual poor, but his property must first be applied to his support, it follows that, unless he were liable to be removed, he might not be able to obtain present relief for want of a purchaser of such property. [ 44 ] [ 45 ] Jervis and Puller, contrà, were stopped by the Court. Lord ELLENBOROUGH C. J. If the inference of consent to the removal, derived from the inere act of applying to the parish for relief, be pushed so far, it may as well be argued that the pauper consented also to a conveyance of his property, if that be a step towards entitling himself to relief. I cannot think that what fell from Mr. Justice Foster, in the case of Aythrop Rooding, when he said, that the party's right to remain on his freehold was founded on Magna Charta, is to be treated lightly. He was speaking from analogy to the case of freehold; the premisses there being copyhold. But he was not liable to draw comparisons rashly; and the reason of the thing applied equally to both. Here the party, whilst he resided on his own estate, was not liable to be removed. GROSE J. was of the same opinion. LAWRENCE J. The power of the justices to remove any person, is founded on the stat. 13 & 14 Car. 2. c. 12. which extends to " any person who shall come to settle in any tenement under the yearly value of 107. ;" and these words having never been deemed to relate to persons living on their own estates, whether acquired by purchase or otherwise, or at whatever value, it followed, that every person residing irremoveably for 40 days in the parish where his own property was, gained a settlement: that encouraged persons to make small purchases for the purpose of settling themselves in particular parishes: and it was to remedy that inconvenience that the stat. of 9 Geo. 1. was passed, which provides that "no person shall be deemed to acquire any settlement in any parish, by virtue of any purchase of any estate or interest in such pa "rish, whereof the consideration, &c. doth not amount to 30%. 66 "&c. for any longer or further time than such person shall "inhabit in (a) such estate; and shall then be liable to be " removed," &c. 66 LE BLANC J. The pauper was not precluded from obtaining relief, because having a settlement in another parish, he might always obtain relief by going there. Both Orders quashed. (a) Vide Dunchurch v. South Kilworth, Burr. S. C. 553. and Rex v. Houghton Le Spring, 1 East, 247. THIS DEAN against PEEL. 1801.. The KING The Inhabit. ants of the case for quod servitium evidence that age, was liv HIS was an action on the case, for debauching and getting Wednesday with child the plaintiff's daughter. The declaration sta- April 25th. ted that the defendant wrongfully intending to injure the An action on plaintiff, debauched and carnally knew E. D. then being the debauching daughter and servant of the plaintiff, whereby she became and getting pregnant, &c. and diseased, &c. by means whereof the said with child the plaintiff's E. D. was rendered unable to perform the necessary affairs daughter and and business of her said father and master; during all servant, per which time he was deprived of her service, and was obliged amisit, is not to expend so much in nursing and taking care of her. The maintained by cause was tried before Chambre J. at the last assizes at the daughter, Lancaster; when the facts appeared to be, that the daugh. though under ter, who was 19 years of age when she was seduced, was then ing in another living in the house of one Taylor, who had before mar- person's fami ly in the ca ried her sister, a few doors from her father's house in Man pacity of a chester. Taylor kept a public-house; and his wife having housekeeper, then lately died, the plaintiff's daughter * acted as his house- tention at the keeper, and had the care of the bar: but no contract was time of the made with her brother-in law for wages, either by herself or seduction to the plaintiff her father, nor did she in fact receive any; and she might have left him when she pleased: but while her sister lay dead in the house, Taylor told her that she might take what money she wanted. Finding herself with child, she returned to her father's house, and afterwards lay in there at his expence: and, after her removal thither, she ap- quence of the seduction, plied to Taylor for wages, who refused to pay any. The and was maindaughter, by whom the above facts were proved, added, upon her examination, that if this misfortune had not befallen her, she had determined not to return to her father's house. On this evidence the learned Judge nonsuited the plaintiff, D2 and had no in return to her father's house, though she after. wards did re turn there while within age, in conse tained by her father. *[ 46 ] 1804. DEAN against · PEEL. [ 47 ] plaintiff, on the ground that there was no service proved to the father at the time of the seduction and getting with child; and that the daughter being under age at the time (which was pressed upon him as distinguishing this from former cases) made no difference, particularly as she had no animus revertandi to her father's family. Topping now moved to set aside the nonsuit, and for a new trial, on the distinction before taken. In Postlethwaite v. Parkes (a), where the daughter was in another service, she was of full age at the time of seduction; and this ground of objection to the action was insisted upon as well as the foreign service; and the matter was compromised. It is true, that in Bennet v. Alcot (b) Buller J. said, that what influenced the opinion of the Court in the former case, was, that the daughter was in the service of another person; but the point has never been judicially decided against the father's right to maintain the action where the daughter was under age at the time (a). And he referred to the two following cases, where Wilson J. at Nisi Prius, had given it as his opinion, that if the daughter was under age, the action was maintainable for her seduction, though she were not living with the father at the time. "Booth v. Charlton, at Lancaster in 1789, cor. Wilson J. This was an action by the father against the defendant, for assaulting his daughter, and debauching and getting her with child, per quod servitium amisit. On evidence, it appeared that the daughter, on her first criminal connection with the defendant, was above 21 years of age; but she was living still with her fa ther. The child was born two months after she attained 22. Wilson J. said, that according to his memory, the distinction in these cases was, that if the daughter were under the age of 21, the action was maintainable, though she should be upon a visit to or be living with another person, her relation. But that if she were of age, the action was main (a) 3 Burr. 1878. (b) a Term Rep. 168. (c) In the case of Saterthwaite v. Duerst, E. 25 Geo. 3, B. R. upon motion in arrest of judgment, where the Court held that an action on the case would not lie unless it were laid with a per quod servitium amisit, it was assumed that the daughter was of full age. And Lord Mansfield C. J. in delivering the opinion of the Court (after time taken to look into the cases) said, "that it appears very extraordinary that any action should lie to a person on account of incontinence between two others, both of whom may be of full age: for it does not appear here that the daughter was not of age." tainable tainable only in case of her living with her father. Verdict- D 3 that 1804. DEAN against PEEL. [ 48 ] [ 49 ] |