have the children of any of his children named in the certificate, a settlement there by birth (h). But the children of a child not named in the certificate, may have such a settlement (i). This point, however, can seldom arise in practice, for the certificate shows the settlement of the father or grandfather, which must be deemed that also of the child or grandchild, who has acquired no other. SECTION II. Settlement by Birth of Illegitimate Children born on or before the 14th August, 1834. Birth settlement, in what | Children born pending appeal, or whilst the mother is being removed, 414. Children born in a strange parish by fraud, 415. Children of certificate-women, 415. Birth settlement, in what cases.] The birth-place of an illegitimate child, born on or before the 14th August, 1834, is its place of settlement (j). Being nullius filius, it neither had nor followed the settlement of the father or mother: consequently if it were born in a place that was extra-parochial, it had no place of settlement at all until it acquired one (k). Therefore where a pauper was born at Oakmere, at a time when it was extra-parochial and no overseer appointed; afterwards it was made a township by Act of parliament, and overseers appointed for it; and the pauper becoming chargeable was removed to it: the court held that he could not be removed to it as the place of his settlement, for it was no township at the time of his birth, and the statute had not the effect of conferring any settlement upon him (7). On the other hand, where the parish of Hales Owen, which consisted of thirteen townships, and formerly supported its poor in common, was in the year 1832 separated, and overseers appointed for each of the townships respectively and a pauper, who before this separation had been born in the parish workhouse, which was situate in the township of Hales Owen (one of (h) See R. v. Batheaston, 8 T. R. 446. (i) See R. v. Darlington, 4 T. R. 797. (j) R. v. Spitalfields, 1 Ld. Raym. 567. R. v. Astley, 2 Bott, 10. : (k) R. v. St. Nicholas, Leicester, 2 B. & C. 889. R. v. Mattersey, 4 B. & Ad. 211. (1) R. v. Oakmere, 5 B. &. A. 577 the townships of which the parish of the same name consisted), was removed to that township, as to the place of her birth settlement: the court held that this could not legally be done as she had in fact no longer any settlement by birth (m). How proved.] In what cases a child is deemed to be illegitimate, see ante, vol. 1, pp. 157, 158. If the mother be unmarried, she may prove her child to be illegitimate, by proving that she was unmarried at the time of its birth, and during the whole time of gestation; if a widow, she may prove it by proving the time of its birth, and the time of the death of her husband. If the mother be reputed to be a married woman, the marriage may be disproved, or facts showing its invalidity may be proved, either by her (n), or by the man to whom she was reputed to be married (o). Or if she be married, she may prove her connection with the putative father (p); but she cannot be permitted to prove the non-access of her husband (q), even after the husband's death (r). Where the pauper, the daughter of a married woman, was born at Sourton, and the mother's husband had since acquired a settlement at Clifton, the question at the trial of the appeal was, whether the pauper were legitimate, so as to be entitled to the settlement at Clifton; the husband was examined as a witness, and upon his cross-examination stated that for a year previous to the birth of the child, and continually afterwards, he resided at Clifton, where he cohabited with his wife's sister, and had a family by her, Clifton being 100 miles distant from Sourton, where the wife resided; and from this cross-examination the sessions were of opinion that there had not been access; but the court held that neither husband nor wife can give evidence of non-access, nor can they be examined or cross-examined to collateral facts for the purpose of proving it; and they accordingly quashed the order of sessions (8). And where a married woman proved that her husband and she had lived separate many years, and that she had married another man, after which she had two children (the paupers), and that her first husband cohabited with another woman: the court held that all this did not amount to evidence of non-access, and the paupers must therefore be deemed to be the legitimate children of the first husband (t). Either husband or wife, however, may prove that the child was born before marriage (u); but their declarations to that effect, even (m) R. v. Tipton, 3 Q. B. 215. MS. E. 1842; 11 Law J. 89, m. (n) R. v. Bramley, 6 T. R. 330. (0) R. v. St. Peter's in Worcestershire, Burr. S. C. 25. Henley v. Chesham, 2 Bott, 75. (p) R. v. Luffe, 8 East, 193. (q) R. v. Luffe, 8 East, 193. R. v. Rook, 1 Wils. 340. (r) R. v. Kea, 11 East, 132. (8) R. v. Sourton, 5 Ad. & El. 180. (t) R. v. Mansfield, 1 Q. B. 444. (u) Goodright v. Moss, Cowp.591. after their death, though receivable in questions of pedigree (x), are no evidence whatever in settlement cases (y). As to proof of the place of birth, it is the same in the case of illegitimate, as of legitimate children, and has already been fully considered, ante, p. 409. Children born in prisons, lying-in hospitals, or workhouses.] If the mother were a prisoner within the walls of a prison, or were in a lying-in hospital, at the time of the birth, the child gained no settlement by birth in the parish, &c., in which such prison or hospital was situate (z): in one case it was holden that the child of such prisoner would be settled in the parish from which the mother was sent to prison (a): in another, that the child would be settled in the parish where the mother was settled at the time she was sent to gaol (b): and as to an illegitimate child born in a lying-in hospital, it immediately gained a settlement in the parish, &c., in which the mother was last legally settled (c). Or if she were in the workhouse of an union, or a workhouse locally situate out of the parish which sent her there, her child was deemed to be born in that parish, or township, &c., by which the mother was sent to, or on whose account she was received and maintained in, such house (d). Children born, pending appeal, or whilst the mother is being removed.] If a woman, pregnant of an illegitimate child, were delivered whilst the officers were removing her, or after an order had been obtained for her removal, but before she was actually removed, then the child was deemed to be settled in the parish to which the mother was removing or about to be removed at the time of the birth, and not in the parish in which it was born (e). Also, if a woman pregnant of an illegitimate child were actually removed, and the order of removal were appealed against and quashed, but pending the appeal and before the sessions she were delivered of the child, such child was deemed to be settled in the parish from which the mother was so removed (ƒ), even although that were not in fact the place of the mother's settlement (g). (x) Goodright v. Moss, supra. (y) R. v. Erith, 8 East, 539. (z) 54 G. 3, c. 170, s. 2. (a) Suckley v. Whithorn, 3 Bulst. 358. (b) Esling v. Hereford, 1 Sess. Ca. 99. (c) 13 G. 3, c. 82, s. 5. (d) 54 G. 3, c. 170, s. 3. 20 G. 3, c. 36. s. 2. 22 G. 3, c. 83, s. 39. Ante, p. 410, and see R. v. St. Peter and St. Paul, in Bath, (e) Jane Grey's Case, Set. & Rem. 66. (f) Westbury v. Coston, 2 Salk. 532. Boreham v. Waltham, Carth. 397. Much Waltham v. Peram, 2 Salk. 474. (g) R. v. Great Salkeld, 6 M. & S. 408. R. v. Martlesham, 10 B. & C. 77. R. v. St. Andrew, Holborn, 6 M. & S. 411. Children born in a strange parish, by fraud.] If by any practice on the part of parish officers, a woman pregnant of a bastard were conveyed from their parish to another, for the purpose of being delivered there, and the child were born there accordingly, the child, notwithstanding its birth in the latter parish, was deemed to be settled in the former (h). But where it appeared that one Elizabeth Otter lived with Green, a farmer at Mattersey, and had two illegitimate children by him, one of whom was the pauper; when she was pregnant of the pauper, Green sent her to a place called Lodge-on-the-Wolds, which was extra-parochial, to be delivered there, he paying the expenses of her lying-in, and after her delivery she returned to Green, and continued to live with him; it was contended that as this was a fraud upon the part of Green, a ratepayer, to prevent the child from being chargeable to Mattersey, the case must be considered as if the fraud had not been committed, and the mother not removed: but the court held, that it was only where such a fraud had been practised by the parish officers, that the bastard is deemed to be born in the parish from which the mother was removed : and that not being the case in the present instance, the pauper could not be deemed to be settled in Mattersey (i). So, where a woman, after being removed from Halifax to Manchester, and received there by the overseers, returned to Halifax on the next day, and was there delivered of a bastard child: the court held that the child was settled in Halifax, where born (k). Children of certificate-women.] If a woman, residing in a parish under a certificate, were delivered there of a bastard child, the child, notwithstanding the certificate, was deemed to be settled in that parish (1), unless she were pregnant at the time the certificate was given to her, and the certificate expressly acknowledged not only her, but also the child of which she was pregnant, as inhabitants of the certifying parish (m). But even where the certificate did thus expressly mention the child of which the woman was pregnant, it only extended to that child, and not to others which she might subsequently have (n). (h) Tewkesbury v. Twining, 2 Bulst. 349. Masters v. Child, 3 Salk. 66. (i) R. v. Mattersey, 4 B. & Ad. 211. (k) R. v. Halifax, 2 B. & Ad. 211. See R. v. Landinaboe, 1 Str. 476, cont. (1) R. v. Hilton, Burr, S.C. 187, 2 Str. 1168. (m) R. v. Ipsley, Burr. S. C. 650, See R. v. Wyke, Id. 264. (n) R. v. Mathon, 7 T. R. 362, SECTION III. Settlement of Illegitimate Children, born since the 14th August, 1834. By stat. 4 & 5 W. 4, c. 76, s. 71, every child which shall be born a bastard, after the passing of this Act [14th Aug. 1834], shall have and follow the settlement of the mother of such child, until such child shall attain the age of sixteen, or shall acquire a settlement in its own right (o). And if the mother marry before that time, the child acquires the settlement of the mother's husband (p). But if the mother have no settlement, then it should seem that the child will be entitled to its birth settlement, as before the statute. There is an ambiguity in the words "shall have and follow" in the above section. But it has recently been decided (q), that as soon as such illegitimate child attains the age of sixteen, he ceases to have or follow the settlement of the mother, and he then falls back upon the settlement he would have had if the statute had never passed, namely, his settlement by birth, and which he retains until he acquire a settlement in his own right. (0) 4 & 5 W. 4, c. 76, s. 71. (p) R. v. St. Mary, Newington, 12 Law J. 68, m. 8. C. MS. E., 29th April, 1843. (q) St. Andrew in Worcester v. Bodenham, 22 L. J. 39, m. |