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1819.

The KING against The Inhabitants of ST. MARY BREDIN, CANTERBURY.

pursuance of the indenture. It was indeed held, in ́ the King v. Smarden (a), that a mere casual residence would not do, and in Rex v. Barmby in the Marsh (b), it was held that a residence during sickness was not sufficient. But these cases are materially distinguishable from 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 of 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

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ation of the service here during the residence of the
boy at Canterbury. It is not indeed necessary that the
service should continue with the same master, but some
service must be going on during all the time. The
offer here is, either to turn the apprentice over to an-
other master, or to permit him to go to school, and the
lad accepted the offer, and said, "I will go to school
and learn navigation."
trol over the apprentice during all that period? The
case is like that of a mafter 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 resi-
dence. Here the service did not continue while the.
apprentice was at school; and, therefore, I am of opi--
nion that no settlement was gained in this case,

Now had the master any con

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.

1819.

The KING against The Inhabitants of. ST. MARY BREDIN, CANTERBURY,

Order of Sessions quashed.

VOL. II.

Cc

1819.

Saturday,
Feb. 6th.

The law always presumes against the

commission of crime; and, therefore,

where a woman, twelve months after her first hus

band was last

The KING against The Inhabitants of TWYNING, in GLOUCESTERSHIRE.

TWO justices removed Mary Burns, the wife of Francis Burns, an Irishman, then absent, and James and Ann her children, from the township of Manchester to the parish of Twyning in the county of Gloucester. The sessions, on appeal, confirmed the order, subject to the opinion of the Court of King's Bench, upon the

heard of, mar- following case:

ried a second husband, and

had children by

him; held, on appeal, that the Sessions did right in presuming prima facie that the first husband

time of the se

cond marriage; and that it was incumbent on the party objecting to the second marriage to give some proof that

About seven years ago, the pauper Mary Burns intermarried with one Richard Winter, with whom she lived a few months, when he enlisted for a soldier, went abroad on foreign service, and has never been heard of since. In a little more than twelve months was dead at the after his departure, the pauper Mary, being then settled in Twyning, intermarried with the said Francis Burns, with whom she has cohabited from the time of such marriage to the present period; the children, mentioned in the order of removal, were born during such cohabitation, and are the children of the said Francis Burns. One of them was born in the parish of 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 first hus

band was then alive.

The

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.

The only

The

W. D. Evans in support of the order. question is, whether this was not a matter of fact, which the sessions were warranted in determining. 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 (b), 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.
(c) 2 Campb. 115.

(b) 6 East, 80.
(d) 2 East, 312.

Cc 2

the

1819.

The KING against The Inhabit ants of TWYNING, GLOUCESTER SHIRE

1819.

The KING against The Inhabitants of TWYNING,

the validity of the second marriage, to prove the death of the first husband, which was not done, and if the sessions are right in this case, there will be no limit at all, for if a woman marries the week after her husband's 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.

SHIRE

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. given. And in Rex v. Hawkins (b), 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.

(b) 10 East, 211.

The

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