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1827.

The KING

v. COTTINGHAM

removal. That order' was not appealed against ; land the appellant parish granted relief to the said Anni and her said child for a short time. In the early part of the year 1827, Patrick O'Hara having left Hull, and it not being known what had become of him, the wife and family again became chargeable to the respondent parish, which, as above stated, removed them to the appellant parish. Upon the trial of the appeal, it was contended on the part of the appellants, that, in consequence of the provisions of the 52 Geo. 3, c. 42, Ann O'Hara and the three youngest children, as the wife and children of an Irishman who had gained no settlement in England, could not legally be removed to the place of the mother's settlement, but should have been passed to the native country of the husband. The Court thought that they might be removed to the place of the wife's maiden settlement, and therefore confirmed the order.

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1; Coltman, in support of the order of Sessions. If this woman had married an Englishman, whose settlement could not be ascertained, instead of an Irishman, and had been deserted by her husband, it is perfectly clear that she and her children might have been removed to the place of her maiden settlement. It has, undoubtedly, been decided, that the maiden settlement of a woman'is suspended while she lives under the protection and control of her husband, and is maintained by him ; but it has also been decided, that if the husband has no legal settlement, or none that can be ascertained, so soon as he dies or deserts the wife, her maiden parish is the place of settlement of herself and her children, and is bound to maintain them. Rer v. Westerham (a). Rer v.: Norton (6), is a case somewhat at variance with this doctrine. The marginal note there states, that “the maiden settlement of a married woman is suspended, and she cannot be removed under it during the coverture ;” and Lee, C. J., said, “I

(a) Foley, 572; 2 Bott, 77. And lected in 4 Burn, 313,4, 5(24th ed.) see other cases to the same effect, col- (6) Burr. S. C. 122.

1827.

The King

COTTINGHAM.

take it to be a settled point, that her settlement is suspended during the coverture, though it does not absolutely cease; and the reason is, because the contrary determination would give the justices a power of divorce. The husband is not here shewn to be dead; therefore the justices have not yet a power to send her to her own last settlement.” Without inquiring into the solidity of that reasoning, it is sufficient to say, that the case was expressly overruled in the subsequent case of Rer v. St. Botolph's (a). There, the wife of an Irish sailor, who had no settlement in England, and who had deserted her, but who was living, was held to be removable, with her children, to her own maiden settlement. The previous decisions upon the point, and all the arguments affecting it, were fully discussed by Ryder, C. J., in his judgment ini that case, which he concluded by saying, “On the whole, we are all of us of opinion, that the mother's maiden settlement remains; having never been determined, but only as it were suspended during the time that she continued under the power and protection of the husband, and was maintained and supported by him.” By the consent of the parties, the wife and children may be at any time removed to the maiden settlement, Cald. 39, Rex v. Eltham(b); and the husband's absconding and deserting his wife, is equivalent to consent on his part. The circumstance of the husband's not being an Englishman, makes no difference in the case ; for the statute 59 Geo.3, c., 12, s. 33, does not apply; and in Rer v. Eltham, an order removing M. F., wife of P. F., a Scotchman, who never gained a settlement in England," and their children, to the place of her last legal settlement, which order was stated on the face of it to be made on examination of the husband, and with the consent of him and his wife, was held to be good.

Archbold and Patteson, contrà. The maiden settlement of the pauper, she being married to an Irishman who has

(a) Burr. S. C. 367 ; Sayer, 198. (1) 5 East, 113.

1

1827.

V.

acquired no settlement in England, is suspended during

her coverture. If her husband had continued with her, The KING

and the family had been chargeable to Hull, they might COTTINGHAM. have been passed to Ireland ; but as he deserted her, she

and the children could neither be passed to Ireland, nor removed to her last place of settlement, but should have been relieved as casual poor by Hull, the parish in which they were resident. The doctrine laid down in the case of Rer v. Eltham, cannot be denied to have been law at the date of that decision ; but the statute 59 Geo. 3, c. 12, has been passed since, and has entirely altered the law upon the subject. Rex v. Leeds (a), is an authority in point. It was there decided, that the wife and unemancipated children of a Scotchman, who had not acquired any settlement in England, must, if chargeable, be sent by a pass with the husband to Scotland, and could not be removed to the maiden settlement of the wife; and Abbott, C. J., in his judgment in that case, observed, that it was one, and that not the smallest of the evils attendant on the poor laws, as they previously existed, that cases had arisen in which it was held, that a removal, amounting to a temporary divorce, might be lawfully made: and expressed a clear opinion that the former authorities, supporting orders of removal of that nature, were no longer law. The new statute, certainly, makes the whole family removable together, so long as the husband continues with them (6); but, as the maiden settlement of the wife is suspended while the husband continues with her, so it must equally be suspended while he is absent from her : for otherwise, the wife and children might be removed during the shortest temporary absence of the husband, and a divorce, one of the mischiefs intended to

(a) 4 B. & A. 419.

the whole family should be remov(6) See Rer v. Whitehaven, 5 B.& ed, if the head of the family was A. 720; 1 D. &R.384; 1 D. & R. not of ability to maintain his chilM.C. 97, where it was said by Ab- dren, and that they were not to be bott, C. J., that the meaning of the removed, absolutely, without any statute 59 Geo. 3, c. 12, was, that regard to that circumstance.

1827.

The King

COTTINGHAM.

be remedied, might still be the consequence. For all that appears, the absence of the husband in this case might be temporary only, and if the family had been relieved by Hull as casual poor, the husband might shortly have returned, and the whole, if they continued chargeable, might then have been passed to Ireland. That seems the only proper course to be pursued; for surely it is but reasonable that the parish which has had the benefit of a man's service, so long as he resided and maintained his family within it, should have the burthen of finding and removing him, when he has absconded and left his family chargeable.

BAYLEY, J.--If the statute 59 Geo. 3, c. 12, had never passed, this would have been a case too plain for argument. Prior to the passing of that statute, if a woman married a husband who had no settlement, and was deserted by him and left chargeable, she and her children were removable to the place of her maiden settlement. In that state of the law, this woman and her children would unquestionably have been removable to Cottingham; and the question, therefore, is, whether the law in this respect has been altered by the statute since passed. The 33d section, upon which this question turns, recites, that poor persons born in Scotland and Ireland, frequently become chargeable to parishes in England, and authorizes the removal of Scotchmen and Irishmen, having no settlement in England, with their wives and families, to their own country, on becoming chargeable, either by themselves, or by their family. The object of the legislature, therefore, clearly was, to relieve parishes from the burthen of relieving casual poor born in Scotland or Ireland. It is true, that it was held in the case of Rer v. Leeds (a), which was decided since the statute passed, that the wife and children of a Scotchman, having become chargeable, and having no settlement in England, could not be re

(a) 4 B. & A. 498.

1827.

The KING

v.

COTTINGHAM.

moved to the place of her maiden settlement, while her husband was residing with her, but that they and the children must be passed to Scotland. But that decision does not touch the present case. Here the husband had absconded, and the wife and children, therefore, could not be passed to Ireland. Then why might they not be removed to the place of her maiden settlement ? The husband here was absent from his family, and the 59 Geo. 3, therefore does not apply. A case like the present was clearly not contemplated by the legislature, nor intended to come within the operation of the statute. The law, with respect to such cases, stands precisely as it did before. The wife and children, consequently, are clearly removable to the place of her maiden settlement; and if the husband's absence should prove temporary, no inconvenience or hardship will result from this removal : for during his absence, his family will be maintained by the parish which in justice ought to maintain them, and upon his return, or upon their finding him, which they will have an interest in doing, that parish may pass him and his family to Ireland. For these reasons, I am of opinion that the order of Sessions is right, and ought to be confirmed.

LITTLEDALE, J.(a), concurred.

Order of Sessions confirmed.

(a) Holroyd, J., was absent.

The King 0. The Inhabitants of the Holy TRINITY

and ST. MARGARET's, HULL. Parol evi- Two Justices, by their order, removed William Thomas, dence of the fact of a pau- his wife, and their six children, from the parish of Ecclesper's having

hall Bierlow, in the county of Stafford, to the parish of of premises in the respondent parish, is admissible on the part of the appellant parish, though he held under a written agreement not produced.

been tenant

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