
    The Inhabitants of Fitchburg versus The Inhabitants of Westminster.
    An illegitimate child acquired a settlement in the town of F., since the St 1793, c. 34, by being born on a farm, upon which its mother lived, within that town The farm was afterwards annexed to the town of W. 5 at which time the mother had removed from F., and the child was living in the part of F. not annexed to W., being then under age and chargeable to the town. Held, that its settlement was not in W.
    This action was brought to recover the expenses incurred by the plaintiffs in supporting a pauper named Jonah Spaulding ; and the question to be determined was, whether the pay per’s settlement was in Westminster.
    The parties agreed upon the following facts. Spaulding was the illegitimate child of Bridget Fiske, and was born in the year 1797 or 1798, upon a farm, then in the town of Fitchburg, but since annexed, by St. 1812, c. 81, to Westminster. At the time of his birth, Amos Fiske, the father of Bridget, lived with his family upon this farm and occupied it, and Bridget was then resident in and a member of the family. Amos Fiske, before and at the time when Spaulding was born, and before and at the timé when the farm was annexed to Westminster, had a settlement in Fitchburg, gained by owning and occupying the farm ; and Bridget had the settlement of her father, she never having gained one in her own right. Amos Fiske had sold his farm before the annexation, and had removed from it with his family. At the time of the annexation, Bridget was not residing in Fitchburg, and Spaulding was living in the part of it not annexed to Westminster, and was then chargeable to the town.
    
      Hoar, for the defendants,
    relied on the cases of Petersham v. Dana, 12 Mass. Rep. 433; Windham v. Portland, 4 Mass. Rep. 384; Groton v. Shirley, 7 Mass. Rep. 156; Brewster v. Harwich, 4 Mass. Rep. 280.
    C. Willard and Shepley, for the plaintiffs.
    The pauper acquired a settlement in Fitchburg, by being born on the territory which was afterwards annexed to Westminster ; and when the annexation was made, his settlement was transferred to Westminster ; Groton v. Shirley; Great Barrington v. Lan
      
      caster, 14 Mass. Rep. 253; for, in contemplation of law, his residence was upon the farm at that time. The circumstance of his being removed to another part of Fitchburg, without his own volition, for the purpose of maintenance, could not affect his settlement. Southbridge v. Charlton, 15 Mass. Rep. 248 Marlborough v. Rutland, 11 Mass. Rep. 486; Princeton v. West Boylston, 11 Mass. Rep. 259. An illegitimate child has the settlement of his mother at the time of his birth, and retains it until he gains a new settlement by some act of his own. Boylston v. Princeton, 13 Mass. Rep. 383. Spaulding, at the time of the annexation, was incompetent to gain a new settlement, both because he was a pauper ; East Sudbury v. Waltham, 13 Mass. Rep. 460; and because he was a minor ; Somerset v. Dighton, 12 Mass. Rep. 383.
    
      Hoar, in reply.
    It does not appear, that Spaulding was removed by the overseers from the farm as a pauper ; in which respect this case differs from Southbridge v. Charlton. But when his mother and grandfather left the town, he ceased to have a home on the farm, and he was found residing in another part of Fitchburg. His wanting and receiving support there could not transfer him to Westminster.
   The opinion of the Court was read at April term 1823, as prepared by

Parker C. J.

The pauper, being an illegitimate child, must have the settlement of his mother at the time of his birth. At that time the settlement of Bridget Fiske, his mother, was in Fitchburg, derived from Amos Fiske, her father. But it is contended by the plaintiffs, that by virtue of the statute which set off the farm, on which Amos Fiske had lived, from Fitch-burg, and annexed it to Westminster, the settlement of Amos Fiske, and all the derivative settlements under him, were transferred to Westminster. We cannot think the statute was intended to have this retroactive operation, and it would be unjust that it should ; for if Amos Fiske, who did not live on the farm at the time of the annexation, but had sold it long be f°re> and all his posterity, are chargeable to Westminster in consequence of the annexation, there is the same reason for applying the rule to every person who may have successively owned or occupied that farm, and by means thereof gained a settlement in Fitchburg prior to the annexation ; and thus Westminster might become chargeable for the support of many families of paupers, by reason of having one single farm annexed to that town. The statute of annexation itself, by implication, limits the liability of Westminster in this particular ; for it provides that Thomas Miles, with his estate, (which is the farm formerly owned by Amos Fiske,) be set off from said town of Fitchburg, and annexed to the town of Westminster, there to do duty and receive privileges. Now, by this statute, the settlement of • Thomas Miles, and all derivative settlements under him, were transferred from Fitchburg to Westminster ; and this was the equivalent for the advantages Westminster might receive from the annexation. If Fiske’s settlement should likewise be transferred, and that of others who might have owned this farm, certainly Westminster would be unequally burdened.

The case of Groton v. Shirley, 7 Mass. Rep. 156, was settled upon the principle we adopt in this case, viz. that the inhabitants of that part of a town, which is annexed to another, have their settlement' changed by the annexation. The same principle was applied in the case of Great Barrington v. Lancaster, 14 Mass. Rep. 253. The case of Southbridge v. Charlton, 15 Mass. Rep. 248, recognizes the same principle, viz. that actual dwelling on the part annexed, or having a home there in a legal sense, at the time, is necessary to effect a change of settlement. It cannot be said that Amos Fiske, or his daughter Bridget, had their home on this farm after it was sold and they had removed therefrom, nor could it be said of the pauper himself, who, at the time of the annexation, dwelt in another part of Fitchburg. His home was in the town of Fitchburg, not on the farm which then belonged to Thomas Miles. A similar question, as to the effect of annexation of part of one town to another, has arisen in the Supreme Court of Maine since the separation. The statute of 1793, relating

to settlements, is ■ still in force there, and a construction of it by that court, composed as we know it to be of learned lawvers, cannot but be respectfully received by us. It was held there, that the annexation of a part of one town to another transferred the settlement of those only, who actually dwelt upon the part so annexed at the time of the annexation. Hallowell v Bowdoinham, 1 Greenleaf, 129.

Plaintiffs nonsuit. 
      
       See also Sidney v. Winthrop, 5 Greenl. 123; Dorchester v. Deerfield, 3 N. Hamp. R. 316; Bow v. Nottingham, 1 N. Hamp. R. 260; Woodstock v. Hooker, 6 Conn. R. 35; Danbury v. New Haven, 5 Conn. R. 584. The settlement of an ill eg: t mate child, born in a State in which its mother has no settlement, is in the place of its birth. Hebron v. Marlborough, 2 Conn. R 18.
     
      
      
        Sutton v. Dana, 4 Pick. 117. See Westborough v. Franklin, 15 Mass. R 254; Marlborough v. Hebron, 2 Conn. R. 20 New Chester v. Bristol, 3 N. Hamp R 71.
     