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![handle is hein.slavery/ssactsengr0080 and id is 1 raw text is: DOE V. LORD KENSINGTON
thus thrown in their way. Child, generally, means a legitimate child ; and it is,
therefore, an untrue description here; and we must not allow it even a chance of
prejudicing those who may hereafter be affected by it.
The remaining objection introduces an important question, which it may be proper
to consider more fully, in order that the rule of practice may be settled.
Cur. adv. vult.
Lord Denman C.J., in the vacation following this term (February 14th), delivered
the judgment of the Court.
The only question that remained undecided in this case was, whether a pauper's
widow and children were well removed to her maiden settlement, where the inquiry
after that of her husband had been certainly very scanty. We lately held, in Regina
v. Yelvertoft (6 Q. B. 801), that such removal was proper, where, in answer to such
inquiries, the removing parish had obtained no other information respecting the
husband's settlement than [427] that he was believed to have been born in some parish
in London. We acted on the authority of Rex v. Harberon (13 East, 311); but it was
observed in the late argument that that case had been decided without reference to
authority ; and indeed none is there quoted. But, on the present occasion, some early
cases were brought to our notice, which may well be taken to have produced a general
impression in favour of the practice then sanctioned by Lord Ellenborough and the
other Judges of this Court.
We wished for time to consider the subject, and are desirous of laying down a
convenient general rule conformably to legal principle. And we think it is laid down
in the judgment of Bayley J. in Rex v. St. Mary, Beverley (1 B. & Ad. 205), (which is
in Mr. Symons's recent work on the Poor Laws (c), p. 144): Where the respondent's
evidence makes out a maiden settlement, and contains nothing to shew that any subse-
quent settlement which would supersede the maiden settlement has been gained, that
constitutes a prima facie case, and the onus of proof that the pauper was not settled
there lies upon the appellants.
The widow's true settlement, of course, is that of the husband, if he had one; and
the duty of the magistrates requires them to inquire into, and, if possible, ascertain
that fact. But it can hardly be said that there is any general presumption of law or
of fact that he must have had one. If he bore a foreign name, or was a negro, the
probability would be the other way; and, supposing the complexion to be white, and
the name perfectly English, he might be a native of Ireland, Scotland, or [428] America.
If, indeed, it should be proved that he had gained a settlement in England, but that no
one could prove in what parish it was, the wife could not be properly removed to the'
maiden settlement, nor to any place, until knowledge was obtained of the place of her
husband's settlement. Thus, if it had been clearly proved that the husband had been
hired, and served for a year, in one of the parishes of London, but no one could tell
in which parish, the removal to the widow's maiden settlement could not have been
correctly made. But, if the husband's settlement cannot be made to appear, the place
of the maiden settlement of the wife is, prima facie, that to which she must be taken :
the question on the sufficiency of a search for the husband's settlement will not arise
either at the sessions or in this Court: the wife's being taken to continue till it is
proved to have been displaced will cast the burden of proof on those who are inter-
ested in discovering that it has been displaced.
This duty belonged to the respondents in the first instance, and is transferred to the
appellants after the removal.
Order of sessions confirmed as to the pauper Henry : quashed as to the other
paupers.
(429] DOE ON THE DEMISE OF GEORGE BUTLER, AND ON THE DEMISE OF
JONATHAN HOWARD AND THOMAS GEORGE HOWARD, against LORD KENSING-
TON AND MARYCHIURCH. DOE ON THE DEMISE OF GEORGE BUTLER, AND ON
THE DEMISE OF JONATHAN HOWARD AND THOMAS GEORGE HOWARD, against
LORD KENSINGTON, DAVID DANIEL THE ELDER, AND DAVID DANIEL THE
YOUNGER. 1846. Lands were conveyed to such uses as K. should appoint,
and, in default of and until appointment, to K. and his assigns for K.'s life, and,
(c) Parish Settlements, &c., by Symons, 2d ad.
K. B. XLIV.-30*
8 Q. R. 47.](ViewImageLocal?handle=hein.slavery/ssactsengr0080&div=1&collection=&method=preview&ext=.png&size=3)