Gambar halaman
PDF
ePub

1827.

The King

BRINGTON.

that the pauper in this case could not acquire a settlement.
Neither was she irremovable; Rer v. North Weald Bas-
sett (a). There, a widow entitled to dower, which was
unassigned, upon her husband's estate, which had been
mortgaged by him for 1000 years, after receiving her
dower upon one half year's rent from the mortgagee in pos-
session, became chargeable to the parish in which the
property was situated, before she had resided 40 days:
and it was held, that as the dower had not been assigned,
she had not such an interest in the parish as to render her
irremovable from what could be called her own. As this
pauper can never acquire a settlement at Brington, it
would be a great hardship on that parish to hold her irre-
movable from it; because the consequence may, and pro-
bably will, be, that she will continue there, chargeable, and
a burthen, for the remainder of her life. Rer v. Aythrop
Rooding, which has been so strongly relied on by the
other side, though it certainly resembles the present case
in some respects, is nevertheless distinguishable from it in
others. There, the pauper was not actually chargeable at
the time of her removal, as she was here; and Lord Mans-
field said, “she cannot be removed from her husband's
property, upon being only likely to become chargeable.”
There, the Court presumed that the wife went into the
removing parish with her husband's consent; for Denison,
J., said, “this woman's going thither does not appear to be
against the consent of her husband ; it is rather to be pre-
sumed that she went with his consent;" here, it is impossi-
ble to presume the husband's consent, for the case finds
that he had been absent from her for a considerable time
before she went to Brington. There, the property belonged
solely and exclusively to the husband, and in his absence
there was no person but the wife who had any interest or
duty to take care of it; here other persons were interested
in the estate, and one of them was actually residing upon
it, and taking charge of it. At all events, in order to
(a) 4 D. & R. 276; 2 B. & C. 724; 2 D. & R. M.C., 221.

1827.

The King

V. BRINGTON,

render the party irremovable, there must be a residence, in the legal import of that word, which there was not in this case. The law requires a residence, not in the character of visitor only, which this pauper was, but in the character of owner of the estate. [Bayley, J. The pauper was interested in the property jointly with her sister, and she went to live with that sister, who resided in the very house mentioned in the marriage settlement.] But she did not go to live there in her own right; she went there merely as the visitor, and resided there merely as the guest, of her sister, without any view of enforcing her own claim to the estate. She did not even go there with the purpose of residing upon the estate; that which the law requires, and which may be termed the animus residendi, was wanting. The case of Rex v. Ashton-under-Lyne (a), is somewhat applicable upon this point. There, the pauper's husband being a soldier, deserted, and left his family in the parish of S., and the wife, during his absence, took a house at 5l. a year in S., and lived in it with her family, and also took another house at five guineas a year, and put some of her husband's furniture into it, intending to remove thither, but never did remove, but underlet it; and during the time she held both, her husband came to see her, and remained seven weeks concealed in the house where she lived, and was made acquainted with her having taken the two. It was held, that the husband did not acquire a settlement by that residence. And why? Upon the ground that he was in the house, not animo residendi, but animo latitandi; for the purpose of concealing himself from danger, not for the purpose of ordinary and ostensible residence. So here, the pauper was in the house, not animo residendi, but animo visitandi ; merely as a guest, not as a resident. [Bayley, J. I take that case to have been decided on a very different ground. The house was taken by the wife, independently, and without the knowledge of, the husband. The landlord treated with her, and her

(a) 4 M. & S. 357.

1827.

The KING

v. BRINGTON.

only; he never intended to make the husband his tenant: the husband never was tenant of, or had any interest in, the house ; therefore his merely inhabiting it for a particular purpose, during a particular period, conferred no settlement upon him. That I take to be the ground of the decision in that case.] If the Court are of opinion that the pauper went to Brington for the purpose of residing there in her own right, and at the same time see, as they must do, that she concealed that purpose, and went apparently with the view of merely paying a visit to her sister; then they must feel that she practised a gross fraud, to the success of which they will not by their decision contribute: Rer v. St. Michael's, Bath(a), where, after deciding upon other points respecting the settlement, Lord Mansfield said, “ there is still another, and a stronger ground in this case; for the possession (of the tenement) was gained by fraud ” (6). Lastly, upon the question of irremovability, it is to be observed, that the order of removal comprehends not only the wife but her daughter, and as the case does not state that the daughter was within the age of nurture, and as such irremovable from her mother, her settlement, at all events, must follow that of her father, and she was removable to Badby, the place of her father's settlement.

BAYLEY, J.-With respect to the point last made, I think the Sessions, by quashing the order of removal with respect to the child as well as the mother, have virtually, though not in express terms, declared that the child was within the age of nurture, and, therefore, not removable from her mother; therefore I see no reason for reversing the order of Sessions on that point. Then with respect to the mother, the only question really is, was she, or was she not, in point of law, removable from Brington ? Whether she has acquired, or could by possibility acquire, a settlement there, is a very different question, and one which it is quite unnecessary to decide on the present

(a) Doug. 630; Cald. 110. (b) Rex v. Birmingham, post.

occasion. Her husband is legally settled in Badby, and is still living; primâ facie, therefore, she was settled there, and there only, and was incapable of obtaining a settlement elsewhere. There are exceptions to that rule, but we need not consider whether the present is one of the excepted cases: it is sufficient for the purposes of this inquiry to say, whether the pauper was removable or not. I am clearly of opinion that she was not, but that she was within the principle of law, which says, that none are removable from their own estate. She had a clear legal interest in one fourth of the estate at Brington; that interest was her own, and not her husband's; the seisin was in her; it was her own property, and she had a right to go and live upon it. The argument that the husband alone was seised in right of his wife, of the interest in the estate, is not correct (a); the utmost that can be contended is, that they were seised jointly; and admitting that to be the case, it does not vary the rights of the wife. But even if the property was exclusively the husband's, still, according to the decision in Rex v. Aythrop Rooding (b), the wife had a natural, at least a matrimonial right, to go to her husband's estate, and being there, was not removable from it; and that is, in its circumstances, a weaker case than the present. Upon the general principle, therefore, it is clear that this pauper was not removable, if she was residing upon her own; but that has been denied, and it has been said that she was not resident in Brington, within the fair legal import of that word. I do not, however, see any thing in that objection. The pauper had a right to go and live upon the estate ; she had a legal interest in it, which might naturally lead her to do so; she had a good reason for doing so, namely, to look after the rents and profits arising from the estate, as well as the desire of seeing her own sister, who was previously residing there. I am, therefore, of opinion, that she was residing upon the estate, in the fullest sense of the word, when she was removed, and that (W) Ante, 434 (b).

1827.

The King

v. BRINGTON.

(6) Burr. S. C. 412.

1827.

she was residing upon her own, and, therefore, irremovable; the result is, that the Sessions came to a right conclusion, and that their order, quashing the order of removal, must be confirmed.

The KING

0. BRINGTON.

The other Judges concurred.

Order of Sessions confirmed.

cannot be

The King v. The Inhabitants of COTTINGHAM. Two justices made an order for the removal of Ann,

The wife the wife of Patrick O'Hara, and her four children, from and children

of an Irishthe town and county of the town of Hull, to the township man, who has

no settlement of Cottingham, as the last legal place of her settlement, in England, and that of her children, in the absence of her husband; and absconds and the Sessions, on appeal, confirmed the order, subject chargeable,

leaving them to the opinion of this Court, upon the following case:

must be re

moved to the Ann O'Hara's maiden settlement was in Cottingham, place of the the appellant parish; and she had acquired no subsequent wife's last

legal settlesettlement. It was admitted that the settlement of her ment, and eldest child, who was born a bastard, was also in that

passed to Ireparish. Patrick O'Hara, a native of Ireland, was married land, under the

59 Geo. 3, to the said Ann on the 28th April 1819, and the three c. 12, s. 33. youngest children are the issue of that marriage. He has no settlement in England. Some time in the year 1819, after the marriage of the said Ann with the said Patrick O'Hara, and while they resided at Hull, the said Ann and her said eldest child became chargeable to Hull, and were thereupon, with the consent of her said husband, removed to Cottingham, the place of her maiden settlement: and the order of removal made upon that occasion stated the said Ann to be “the wife of Patrick O'Hara, an Irishman, who had no settlement in England ;” and that the said Patrick O'Hara had consented to the said

« SebelumnyaLanjutkan »