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REPORTS OF CASES

CONNECTED WITH

THE DUTIES AND OFFICE OF MAGISTRATES:

COMMENCING IN

MICHAELMAS TERM, 7 VICTORIÆ.

ANTS OF BIRMINGHAM.

1843. THE QUEEN V. THE INHABIT- husband, who is now out of employ and unNov. 10. S

able to support her and her children; that Order of Removal-SettlementParent

they are all inmates of the workhouse, chargeand Child.

able to the parish of Aston, and that she

consents to the removal of her children from A widow having two legitimate children her, and wishes them to be sent to their whose settlement was in the parish of B, parish. married a second husband having a settlement By the statement of the grounds of appeal, in and residing in the parish of A. Whilst it was objected, first, that the said order of the children were under the age of nurture, removal is bad on the face thereof, and inthey all became chargeable to the parish of operative, because it removes the said children A. :--Held, that the children could not be Harriet Atkins and Elizabeth Ann Atkins, separated from the mother and removed to and separates them from their mother Elithe parish of B, though the mother consented zabeth Johns, and from her care and custody, to such removal, and wished them to be sent such children being respectively within the to their own parish.

ages of nurture, as appears by the said order.

Secondly, that the order is bad and inopeOn appeal against the order of two Jus- rative, because the children removed thereby tices, whereby Harriet Atkins and Elizabeth cannot be removed with the consent of their Ann Atkins, children of James Atkins, de- said mother from her, or from her care and ceased, were removed from the parish of custody. Also that the said examination is Aston to the parish of Birmingham, both in bad, because the said mother, Elizabeth the county of Warwick, the Sessions con- Johns, has no power to consent to the refirmed the order subject to the opinion of moval of her said children, and their sepathe Court, upon a case, which set out the ration from her, and that the order and exaexamination of Elizabeth Johns, the mother mination were bad, because the said H. A. of the paupers, and from which it appeared, and E. A. A. are thereby separated from that in August 1834, she, the said E. Johns, their said mother, and removed from her intermarried with her late husband James care and custody. On the hearing of the Atkins, at Edgbaston, by whom she had two appeal, it was admitted, that the legal settlechildren born in lawful wedlock, namely, the ment of the said H. Atkins and E. A. Atsaid Harriet Atkins and the said Elizabeth kins was, at the time of making the said Ann Atkins, the former being nearly seven order, in the parish of Birmingham; but it years, the latter a little more than five was objected, for the appellants, that the years of age; that her said late husband said children, being within the age of nurture, died in December 1837, and that in 1841 she could not be separated from their mother intermarried with Joseph Johns, her present by an order of removal, even with her consent. New SE

S, XIII.-MAG. Cas.

B

an

The Quarter Sessions were of opinion, was already separated from the mother, and that the said children, although within the there was no power to remove the child to the age of nurture, might be removed to their parish in which the mother was then settled own parish and separated from their mother and residing at the time of the order. In by her consent, and confirmed the order. If The King v. Benett the mother was the Court should be of opinion that the de- Irishwoman, and the Justices were bound cision of the Court of Quarter Sessions on to remove her, though they had no power of this point was incorrect, then the said order removing her illegitimate child from its of removal to be quashed. If otherwise, the birth settlement in this country. The rule said order to be confirmed.

that nurse children, whether legitimate or Daniell and Mellor, in support of the order illegitimate, cannot be separated from the of Sessions. There is no imperative rule mother, has always been recognized— The of law to prevent the separation of nurse King v. Hemlington (5), The King v. children from their mother. Such separa- Wankford (6), The King v. Saxmundham tion has taken place in cases in which orders (7), Shermanbury v. Bolney (8), and The have been made for the removal of children King v. St. Giles's in the Fields (9). The under the age of nurture, without reference rule appears to be adopted for the benefit of to the settlement of their parents— The King the child, and it is one which the child is v. Bucklebury(1), The King v. Benett(2) not of an age to waive; and in this particular The Queen v. Wendron (3). This is like a case, the mother, who had married again, was case of voluntary desertion. The parish not a free agent for the purpose of consentof Birmingham being compellable to reim- ing to the removal.—(He was then stopped.) burse the parish of Aston, it avoids all circuity. The form of order on the church- LORD DENMAN, C.J.-Cases have arisen, wardens and overseers to reimburse a parish where, in order to give effect to the express in which a child is residing with its mother words of an act of parliament, it has been nefor nurture, states that such mother “ is not

cessary to break in upon an established prin-willing to part with the child until it attains ciple: no such necessity, however, exists in the

age of seven years”—4 Burn's Justice, the present case. It is an established rule, Chitty's edit. 1074. So the statute 22 Geo. 3. recognized by all Judges, and doubted by c. 83. s. 30, which enables guardians of the none, that a child within the age of nurture poor to put out children under seven years must remain with the mother. Such rule has of age, provides, that nothing therein con- been laid down for the benefit of the child, tained shall give power to separate children and has no reference to the will of the mother. under seven years of age from the parents We ought to crush the first attempt to de“ without the consent of such parents." part from that principle, as it is of the highest

[COLERIDGE, J. - Suppose the mother importance that the rule should be underwere not satisfied that the child was pro- stood. The order of Sessions must be perly taken care of, could she get it back quashed. again?]

Williams, J.-I fully agree that the rule (LORD DENMAN, C.J.-According to your is intended for the benefit of the child; and argument, if the mother revoked her consent it is of the highest importance that it should it would be a sufficient ground for getting not be departed from. rid of the order.]

COLERIDGE, J.—I also agree that the order Hayes, (with whom was 1. Spooner,)

was I. Spooner,) of Sessions must be quashed. The question contrà.-If this child is removeable, by the proposed to us has been raised in the driest same rule a child a week old might be re- possible way, and we must lay down a rule moved. None of the authorities referred to applicable to all cases of children within the on the other side apply to such a case as the age of nurture, and cannot make a distincpresent. In The Queen v. Wendron the child tion between the case of a child six days

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(1) 1 Term Rep. 164.

(2) 2 B. & Ad. 712; s. c. 9 Law J. Rep. M.C. 95.

(3) 7 Ad. & El. 819; s. c. 7 Law J. Rep. (n.s.) M.C. 22.

(5) Dougl. 9, n. 2.
(6) Carth. 449.
(7) Fort. 307; s. c. 2 Bott, 16.
(8) Carth. 279.
(9) 2 Bott, 21.

ANTS OF SOUTH KILVINGTON.

a

and one of six years old. What could be children, from the township of South Kilmore shocking than the removal of a child vington to the township of Newshama week old to a distant part of the country, with-Breckenborough, both in the North merely because the mother consented to such Riding of the county of York, the Sessions removal? It is to be observed that, in the quashed the order, subject to the opinion of present instance also, the mother is a married this Court upon the followingwoman, whose consent to any act relating to the alienation of her property would

CASE. amount to nothing.

In January 1840, the pauper, who had WIGHTMAN, J.-I agree with the rest of previously gained a settlement in the townthe Court that the order of Sessions should ship of Newsham - with - Breckenborough, be quashed, on the ground that the rule took a cottage, being a separate and distinct which prohibits the separation of a child dwelling-house in the township of South under seven years of age from its mother, was Kilvington, of a Mr. West, at the annual intended for the benefit of the child.

rent of 5l. ; nothing was said about the Order of Sessions quashed.

rates with respect to the cottage, for which in two several rates made for the relief of the poor, on the 12th of November 1840,

and the 22nd of February 1841, the pauper 1843. THE QUEEN 0. THE INHABIT- was rated at the sum of 2s. 9d., being Nov. 11. )

in each instance rate of 1s. in the Settlement - Rate, Payment of - What

pound on the sum of 21. 15s., being the

amount at which, in each of the said rates, amounts to.

the cottage was asses

sessed, both of which The pauper was let into occupation of rates the pauper paid. At Candlemas 1841, three acres and three roods of land, at the Mr. West let the pauper a field, containing rent of 141. 14s. a year, the landlord agree- three acres and three roods of land, in the ing to pay all that came against it. By said township of South Kilvington, upon reason of this agreement of the landlord, the the terms following: the land was taken from rent was higher than it otherwise would have year to year, the rent was fourteen guineas been. The pauper's name was in the rate a year, and the landlord was to pay all that book as occupier, but when the rate was de- came against it. The rent at which the manded, he referred the overseer to the land- pauper agreed to take the field, was a higher lord, who paid it : Held, that this was rent, because the landlord was to pay the not such a payment of rates as to satisfy 3 rates and all that came against it. Will. f. M. c. 11. s. 6, or 4 & 5 Will. 4. The pauper actually occupied the field, c. 76. S. 66, and that no settlement was together with the cottage, from Candlemas gained thereby.

1841 to August 1842, at the rent of 191. 14s.

a year, and during this period he paid the On an appeal against an order of two landlord the whole rent, and was rated and Justices, (dated the 10th of January 1843,) charged in respect of the field and cottage removing Thomas Gallantree, his wife, and as follows:

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The overseers of the poor of the townshipsions to be confirmed; but if it should be of South Kilvington called upon the pauper of opinion that it was not, then the order of and demanded 7s. 11 d., the first of these Sessions to be quashed (1). rates: the pauper paid 2s., being 9d. in the Bliss and Wharton, in support of the pound, on 21. 15s., the amount for which order of Sessions. The payment was he was assessed for the cottage, before he substantially a payment by the tenant took the land, and referred the overseer to The King v. Bridgewater (2). The King v. the landlord, Mr. West, for the rest, who Weobley (3) is clearly distinguishable, as thereupon, in pursuance of his agreement, the rate which was paid by the collector, paid the remaining 5s. 11 d., being also 9d. was not deducted from the salary of the in the pound, on 71. 17s. 9d., the residue pauper. The payment may be considered of 101. 12s. 9d., at which the house and as made by the hand of the landlord- The land were assessed, and of the remaining King v. Hope Mansell (4), The King v. rates of 8s. Od. and 5s. 4d. the tenant re- Okehampton(5), The Kiug v. Bramley (6), spectively paid 2s. and 1s. 4 d., being in one and The King v. Axmouth (7).

Such a instance a rate of 9 d., and in the other payment would be considered as having instance a rate of 6d. in the pound, on been made with sufficient authority, even 21. 158., the amount above described as under the Municipal Corporation Actthat at which the cottager was assessed be- The King v. the Mayor of Bridgnorth (8). fore he took the land, and the landlord, in The pauper, being the actual occupier, also pursuance of his agreement, paid the re- complied with the provision of 4 & 5 Will. 4. mainder, the overseers always after the c. 76. s. 66, by paying the ratesThe above-mentioned reference by the pauper to King v. St. Nicholas, Rochester (9), and Mr. West, applying to him for the rates due in The King v. St. Nicholas, Colchester (10). respect of that land. The pauper resided in Watson and Archbold, contrà.—This was the township during the whole period of his neither a good payment of rates within 3 Will. occupation of the land. By their statement & M. c. 11. s. 6, nor under 4 & 5 Will. 4. of the grounds of appeal, the appellants c. 76. An act of parliament must be conrelied not only on a renting of a tenement (1) 3 Will. & M. c. 11. s.6—“If any person who by the pauper within the respondent town- shall come to inhabit in any town or parish shall for ship, sufficient to give him a settlement himself and on his own account, execute any public there ; but also that he had gained a settle

annual office or charge in the said town or parish ment therein, by having in the years 1841

during one whole year, or shall be charged with

and pay his share towards the public taxes and and 1842 been charged with and having levies of the said town or parish, then he shall be paid his share towards the public taxes or adjudged and deemed to have a legal settlement in levies of the said tow hip of South Kilving

the same," without the notice required by the act,

By 35 Geo. 3. c. 101. s. 4, no person who shall ton; and the only question disputed between

come into any parish, &c., shall gain a settlement the parties was, whether upon the above in such parish, &c., by being charged with and facts it could be said that the pauper had paying their share towards the public taxes and paid the poor-rate for a year, during his

levies of such parish, &c., for and on account, or in occupation of the land, so as to satisfy the

respect of any tenement not being of the yearly

value of 101.; and see 6 Geo. 4. c. 57. s. 2. 66th section of 4 & 5 Will. 4. c. 76, or whe- 4 & 5 Will. 4. c. 76. s. 66—“ No settlement shall ther he had been charged with and paid his be acquired or completed by occupying a tenement, share towards the poor-rate, under the 3 &

unless the person occupying the same shall have 4 Will. & M. c. 11. s. 6. The Court of

been assessed to the poor-rate, and shall have paid

the same in respect of such tenement for one year.” Quarter Sessions held, that the payment of (2) 3 Term Rep. 550. the poor-rate by the landlord, in consequence (3) 2 East, 68. of the agreement between him and the (4) Cald. S.C. 252.

(5) Burr. S.C. 5. pauper, was a payment of the latter, suffi

(6) Ibid. 75. cient to satisfy either of the statutes, and (7) 8 East, 383. quashed the order by removal.

(8) 10 Ad. & El. 66 ; s. c. 8 Law J. Rep. (n.s.) tion for the opinion of this Court was, whe

M.C. 86. ther such payment was sufficient under either

(9) 5 B. & Ad. 226; s. c. 3 Law J. Rep. (n.s.)

M.C. 45. of those statutes: if the Court should be of

(10) 2 Ad. & El. 599 ; s. C. 4 Law J. Rep. (N.s.) opinion that it was, then the order of Ses- M.C. 46.

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