
    * The Inhabitants of Canton versus David N. Bentley.
    A settlement gained in another state does not annul a previous settlement in a town within this state.
    This was an action of debt for a penalty of twenty pounds given by the 15th. section of the “ Act providing for the relief and support, employment and removal, of the poor,” &c.,  to be forfeited by any person who shall bring and leave within any town in this state a poor person not an inhabitant of such town. And the plaintiffs aver that the defendant brought one Freeman Fmerton, a poor person, into the town of Canton, and there left him, when not an inhabitant there, knowing him to be a poor person, &c.
    At the trial of the cause, which was had upon the general issue at the sittings here after October term, 1812, before the late Chief Justice Sewall, the fact that the defendant brought the said Fmerton into the town of Canton, knowing him to be a poor person, being admitted, his defence was, that the said Everton had his last legal settlement in that town.
    The plaintiffs admitted that Thomas Fmerton, the husband of Mehitabel Everton, had and has his legal settlement in Canton. The said Thomas and Mehitabel were married at Preston, in the state of Connecticut, and the said marriage has never been dissolved by any divorce. Since the intermarriage, the said Mehitabel has been the mother of four children. In 1810, Freeman, one of the said four children, was removed and brought by the defendant from Preston to Canton, as a person who had become chargeable to Preston. The said Freeman was born at Norwich, in Connecticut.
    
    The deposition of Thomas Fmerton was introduced by the plaintiffs at the trial, and came up in the case, and was to be considered as evidence of the facts therein stated, so far as his testimony might be competent to prove them. The deposition stated that he Was absent in the army of the United States for five or six years, computed from the June * preceding the defeat [ * 442 ] of General St. Clair in the western country, during which time he did not see his wife Mehitabel; that Freeman was not his son, having been not the first child born of his wife, after he so left her and enlisted into the army; during which absence of his she had been married to one Manning, supposing that her husband Everton had been killed.
    The plaintiffs also proved, by the testimony of a Mr. Downs, that, in the year 1809, when he was a selectman and overseer of the poor in Canton, the said Freeman, with his mother and sister, came to that town from Stoughton, and being poor and in need of relief, were provided for by the selectmen ; that the mother went away into Connecticut, and soon after returned to Canton, and wanted help to be enabled to go back again to Connecticut; and on that occasion the witness gave her eight dollars on the town’s account, and the mother and children went away in a wagon which came from Connecticut for them, the team which carried them away having been employed by Canton; and that, when Freeman was brought back by the defendant, in the autumn of 1810, he was warned not to leave him in Canton.
    
    A nonsuit was ordered by the judge, the defendant agreeing that it should be set aside, and judgment rendered against him for the penalty upon a default, if the Court should be of opinion, upon the facts proved, that the said Freeman Everton had not a legal settlement in Canton.
    
    
      Whitman and Dunbar for the plaintiffs.
    
      Hastings and Worthington for the defendant.
    
      
      
        Stat. 1793, c. 59.
    
   Parker, C. J.,

delivered the opinion of the Court.

Whether the deposition of Thomas Everton, taken to prove that Freeman Everton, the pauper, was an illegitimate son of his, the said Thomas’s, wife, although born during the marriage, ought to be admitted, has been considered a principal question in this case; although, upon full investigation, the decision does not appear now to turn at all upon that question. It may well be doubted, however, whether a husband can be a competent witness to prove a fact * which amounts to adultery on the part of the [ * 443 ] wife; and it certainly would be against good manners and common decency that such evidence should be admitted.

But the testimony touching the illegitimacy of the pauper ,s immaterial. If a legitimate son of Thomas and his wife, he has his settlement in Canton derivatively from his father; if an illegitimate son of the wife, he has the settlement derivatively from her, she having acquired a settlement in Canton from her marriage.

The only question, therefore, is, whether the pauper had gained or derived a subsequent settlement, by which this settlement in Canton is taken away and lost.

The only place where it can be pretended such settlement has been acquired is Connecticut. Now, it has been uniformly held, that a habitancy or settlement, once lawfully gained in any town in this state, is not affected by any residence or actual settlement gained in another state. Such settlement may be changed from town to town within this state; but if the pauper passes without its bounds and jurisdiction, the place within the state in which he was last lawfully settled remains his settlement; so that, upon his return to such place a pauper, he becomes chargeable there.

The section of the statute upon which this action is brought provides “ that if any person shall bring and leave any poor and indigent person in any town or district in this commonwealth, wherein such pauper is not lawfully settled, knowing him to be poor and indigent, he shall forfeit and pay the sum of twenty pounds for every such offence,” &c.

The pauper left in Canton by the defendant having, when within this commonwealth, a lawful settlement in that town, as before shown, of course this action cannot be supported, and the nonsuit must stand.

Possibly, by the laws of Connecticut, the pauper had gained a settlement by birth, or derivatively from his mother in Preston, or some other town in that state; and a case like this may suggest [" * 444 ] to the legislature some remedy against the * return of paupers from another state, after they have, by the laws of such state, acquired a lawful settlement there. But of this we are not competent to decide,

Costs for the defendant. 
      
      
         Chelsea vs. Malden, 4 Mass. Rep. 131.— Townsend vs. Billerica, 10 Mass. Rep. 411. — Mendon vs. Bellingham, 1 Pick. 153.
     