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1819. pursuance of the indenture. It was indeed held, in
the King v. Smarden (a), that a mere casual residence The KING against would not do, and in Rex v. Barmby in the Marsh (6), it
was held that a residence during sickness was not suffiST. MARY
cient. But these cases are materially distinguishable BREDIN, CANTERBURY. froin this; here the apprentice was bound as a mariner,
and the art of navigation was essential to him, and it was for the purpose of improving himself in that essential qualification that this residence at Canterbury took place. If he had been there only for the purposes of general improvement, or engaged in any other trade, it would not be sufficient. But here, he was carrying into effect the very purpose for which he had been bound apprentice, and that by the consent of his master. His residence, therefore, at Canterbury, was sufficient to confer a settlement.
Berens, contrà, was stopped by the Court.
BAYLEY J. This is a case new in its circumstances, and we are called upon now to lay down a rule which is to govern in future. It has been truly stated, that the words of the statute are only “such binding and inhabitation.” But I apprehend that the service the apprentice is one of the essential requisites to confer a settlement of this sort. This service must either actually or constructively be going on during the absence of the apprentice from his master; and the cases say, that where that absence is occasioned by illness, which negatives the existence of such service, no settlement is gained by such a residence. Now there is no continu
ants of ST. MARY
ation of the service here during the residence of the 1819, boy at Canterbury. It is not indeed necessary that the
The KING service should continue with the same master, but some against
The Inihabitservice must be going on during all the time. The offer here is, either to turn the apprentice over to an
BREDIN, other master, or to permit him to go to school, and the CANTERBURY, lad accepted the offer, and said, " I will go to school and learn navigation.” Now had the master any control over the apprentice during all that period? The case is like that of a master who allows his apprentice to return to his friends, having no occasion for his ser-. vice. That is a suspension of the apprenticeship for the time, and no settlement can be gained by such residence. Here the service did not continue while the. apprentice was at school; and, therefore, I am of opisnion that no settlement was gained in this case,
HOLROYD J. The service did not continue while the apprentice was at school; but there was a relinquishment of it by the master during all that time, and until he should have occasion for him again. No settlement was therefore gained by the residence in Canterbury.
BEST J. concurred.
Order of Sessions quashed.
The King against The Inhabitants of TWYNING,
The law al
TWO justices removed Mary Burns, the wife of ways presumes against the Francis Burns, an Irishman, then absent, and James commission of crime; and, and Ann her children, from the township of Manchester therefore, where a wo
to the parish of Twyning in the county of Gloucester. man, twelve
The sessions, on appeal, confirmed the order, subject months after her first hus
to the opinion of the Court of King's Bench, upon the band was last heard of, mar- following case: ried a second husband, and About seven years ago, the pauper Mary Burns had children by intermarried with one Richard Winter, with whom him ; held, on appeal, that the she lived a few months, when he enlisted for a soldier, Sessions did right in pre- went abroad on foreign service, and has never been suming prima facie that the heard of since. In a little more than twelve months first husband was dead at the after his departure, the pauper Mary, being then time of the second marriage;
settled in Twyning, intermarried with the said Francis and that it was Burns, with whom she has cohabited from the time incumbent on the party ob- of such marriage to the present period; the children, jecting to the second mar
mentioned in the order of removal, were born during some proof that such cohabitation, and are the children of the said the first husband was then
Francis Burns. One of them was born in the parish of alive.
Tewksbury, and the other in a parish in the city of Worcester. On the part of the appellants it was contended, that the respondents ought further to have proved the death of Richard Winter, prior to the marriage with Francis Burns, and that in the absence of such proof, the presumption of law was, that he was then alive, and that consequently the children must be considered as illegitimate, and settled where born, and that as to them, the order ought to be set aside.
The sessions were of opinion, that there was sufficient evidence of the non-access of Richard Winter, and that the burthen of proof lay upon the appellants, to shew that he was alive at the time of the second marriage, and confirmed the order.
against The Inhabit.
ants of TWYNING, GLOUCESTER
W. D. Evans in support of the order. The only question is, whether this was not a matter of fact, which the sessions were warranted in determining. The presumption must in all cases be against the commission of a crime, and here, unless the sessions were right, the woman must have been guilty of bigamy; and he cited Williams v. the East India Company. (a)
Nolan and Coltman, contrà. Some evidence must undoubtedly be given to negative the presumption that no crime has been committed. But the question is, whether that evidence has not been given in this case. The Court have to consider, not what the presumption now is, as to the death of the first husband, but what it was at the time of the second marriage. Now that was within less than twelve months after the husband's departure. It is laid down in the books, that the presumption of life continues till seven years have elapsed after the party has been heard of, Doe v. Jesson (6), Hopewell v. De Pinna. (c) Till that time has expired, the presumption of life continues, and in Wilson v. Hodges (d), it was laid down that the proof lies on the party asserting the death. Here, therefore, it was necessary for the party who asserted
(a) 3 East, 192.
(6) 6 East, 80.
(d) 2 East, 312. Cc 2
1819. the validity of the second marriage, to prove the death
of the first husband, which was not done, and if the The King
against sessions are right in this case, there will be no limit at The Inhabita
ants of all, for if a woman marries the week after her husband's TWYNING, GLOUCESTER- departure, it will equally follow that the marriage is
valid. This is not like the case of bigamy, but is only a civil suit between two parishes.
BAYLEY J. It is not necessary for the Court in this
case, to impugn the authority of the cases which · have been cited, nor to vary the ordinary presumption which exists both in civil and criminal cases : for this is a case of conflicting presumptions, and the question is, which is to prevail. The law presumes the continuation of life, but it also presumes against the commission of crimes, and that even in civil cases, until the contrary be proved. The case of Williams v. East India Company (a), decided that the onus probandi lay in such cases on the opposite side. For there, in an ordinary case, it would have been the duty of the defendants to have proved the notice; but the Court held, that inasmuch as the delivery of the combustible matter without notice, would have been a crime in the party delivering it, it became necessary for the plaintiff to prove that no such notice had been given. And in Rex v. Hawkins (6), where the objection was, that the defendant had not taken the sacrament within the year, and it was said in answer, non constat that the other party had not equally omitted to do so, the Court held, . that the presumption was, that he had conformed to the law.
(a) 3 East, 192.
(6) 10 East, 211.