
    Adams & Barnum against Foster & Lawrence.
    After an order movai of a the’town of°B. to the town of D., it was found, that he r be° Te-moved, ^and wards, died in order was not the town ofB had taken no der the ’ 16th “ actnfor the relief and settlement of the poor,”(sess.36. It. £.’ 279.) town°of D ‘to enforce, by payment of the maintaining the pauper in and of his fua^nofe^had been given by of B. to the ^veisems ^ tiíafthe1 Ovífseers of D., grieved by the order or notice, within the meaning of the act, no appeal would lie to the Sessions.
    A father, who has acquired a legal settlement in a town, cannot, by any deed, release, or act of emancipation, devest his son, who has not arrived "at 21, nor acquired a settlement for himself, of his right of settlement, derived from his father; though the son, since such deed of emancipation, had not resided in his father’s family, but had acted, in all things, for himself* and wo-.ked entirely for his own benefit
    
      IN ERROR, on certiorari to the General Sessions of the Peace of the county of Franklin. From the return to the certiorari, it appeared, that there was an appeal to the Court 0f Sessions, from the order of removal, made by two Jus- ’ i j tices of the Peace, of the town of Bangor, on the 2d of May, 1821, by which they adjudged Cyrus Potter, a pauperj t0 p,e legally settled in the town of Dickenson, and directed any constable, Sic. to remove him from B. to D. At the time of making the order, the pauper was sick and lame> and it was found, that he could not be removed, with-0ut injury to his health. On the 4th of May, after the order was made, Adams and Barnum, Overseers of the Poor, °k Bangor, served on Foster and Laivrence, Overseers of the Poor of Dickenson, a notice, in writing, of the name and circumstances of the pauper, and requesting them to take care of, relieve and maintain him during his illness, and t0 Provide for his funeral, in case he should die in Bangor} pursuant to the provisions of the 16th section of the “act for the relief and settlement of the poor,” passed April 13, 1813 ; and, also, a copy of the order of removal, with an endorsement thereon, signed by the Justices and one of the Overseers of B., expressing their opinion, that the pauper could not be removed, on account of his health. The pauper was not removed under the order, but died, in July following, a charge on the town of Bangor. A warrant of ¿jstress was jssuec| against Thomas Oakes, late Overseer of *e Poor °f D-> dn& one of the predecessors of Foster and Lawrence, for neglecting to provide for the pauper, after due notice for that purpose ; from which warrant, Oakes¡, 
      " as late Overseer of the Poor of JO.” appealed, on the ground, that the pauper’s last legal settlement was not in D. And, on the 22d of September, 1821, Foster and Lawrence, also, appealed to the Sessions, and both appeals were entered at the October Sessions, at the same time. The appellees moved to quash the first appeal, on the ground, that the order of removal had never been executed, and the pauper died before the prosecution of the appeal; but the Court denied the motion, and the appeals came on to be heard, at the January Sessions, in 1822. The appellees again moved to quash the appeal, on the ground before stated, but the motion was overruled by the Court. On the trial before the Sessions, it was proved, that the town of D. formerly included within its limits what now constitutes the present towns of JO. and JB. That by an act of the legislature of the 15th of June, 1812, the town of D. was divided, and a part thereof erected into a new town, by the name of Bangor. The pauper was the son of Andrew Potter, and was of age, in September, 1819. He never acquired any settlement for himself. In 1811, the father, with his family, including the pauper, resided on a farm in the town of JD., in that part of it which is now included in the town of B. The father was assessed for the farm in 1811, and paid the tax in the winter following, and continued to reside upon the farm, after the division of the town of ID., until the winter of 1813, when his wife and children, including the pauper, removed to the towm of JO., to reside with another son of Andrew P., who continued in the town of B., where he worked the two following years, and was assessed and paid a tax in B. in 1815. In the spring of 1816, Andrew P., also, removed to the town of JO., where he lived with his family, upon a lot of "land, for which he was assessed and paid a tax to the collector of D. On the 23d of July, 1816, Andrew P. executed to his son, the pauper, a deed, by which, in consideration of fifty dollars, he released to him all the right, &c. which he, A. P. had, or might have, to his labour and services, until he should arrive at the age of twenty-one years, and giving him full power and license to act, in all things, for himself, &cc. It was proved, that, at the time this instrument was executed, the son lived with one Ciarle, who paid the fifty dollars, mentioned in the deed, for ym_ The son had, for two years before, worked for himself, in different places, and, after the execution of the instrument, went into Vermont, where he remained for more than two years, when he returned to D. and lived with a brother, and worked on a piece of land of his own; but soon after returned to Vermont, where he continued until the spring or summer of 1819, when he returned to D., being sick and unable to work. He boarded some weeks with a brother, at Bangor, and sometimes with another brother, at Fort Covington, until the winter of 1821, when, being in Bangor, he, by reason of his sickness and lameness, became chargeable to that town. After the execution of the instrument, above mentioned, the pauper never resided with his father, who no longer exercised any control over him; nor did he claim or receive any part of his earnings.
    The Court of Sessions quashed the order of removal, and adjudged the overseers of the town of B., to pay to the overseers of the town of D., 27 dollars and 17 cents, for the costs of the appeal.
    On the return of the certiorari, Adams and Barnum, assigned for error, that the Court of Sessions allowed Foster and Lawrence to prosecute and sustain the appeal, after it was admitted, that the order of removal had never-been executed, by removing the pauper to the town of D., and after it was admitted, that he died before the commencement of the appeal, when they could not be aggrieved by the order ; and because, the appeal ought to have been dismissed, on the motions made by the appellees, 8cc. Foster and Lawrence, joined in error.
    The cause was submitted to the Court, without argument.
   Woodworth, J.

delivered the opinion of the Court.

The order of removal was made under the seventh section of the act; but it never was carried into effect. As the pauper died, before notice of an appeal, it appears to me the town of Dicleenson was not aggrieved, and, therefore, the order could not be the subject of an appeal. There could be no grievance to the town, to which the order of removal was made, until it was executed. It is evident, that the overseers of Bangor intended to abandon the order; for, two days after it was made, they gave notice under the sixteenth section of the act, requiring the overseers of Dickenson to provide for the pauper as a sick person, unable to be removed. It is true, they served a copy of the order of removal with the notice, but this was of no avail; the respondents were not bound to take notice of it. If it is considered as an adjudication, which the overseers of Bangor might adopt, as laying the foundation for a warrant to distrain and sell the goods and chattels of the overseers neglecting to provide for the pauper, still an appeal was premature. No steps have been taken by Bangor to compel payment, and, non constat, that they ever will take any. The town of Dickenson has never been aggrieved on this account. Whenever the town of Bangor takes measures to enforce the payment for expenses incurred, hy warrant, then an appeal will lie; but not before. Putting the order out of question, it will not be pretended, that an appeal would lie from the notice merely; for, although the statute directs a notice, yet, it presupposes an adjudication, as to the settlement, to be made before a warrant issues to compel payment. (Voorhes v. Whipple, 7 Johns. Rep. 94.) On the preceding grounds the appeal ought to have been dismissed.

But admitting the appeal was properly before the Court, was the settlement of the pauper in Bangor ?

The town of Dickenson was divided, on the 15th of June, 1812 ; previous to that time, it included the territory, which constitutes the present towns of Dickenson and Bangor. Cyrus Potter, the pauper, was twenty-one years old in September, 1819 ; he was the son of Andrew Potter, and never gained a settlement for himself.

In 1811, the pauper’s father resided on a farm in that part of Dickenson which is now included in Bangor, and was assessed in that year, and paid taxes. After the division of the towns, he continued in Bangor, and, in 1815, was assessed, and paid taxes. In 1816 he removed to Dickenson, was there assessed, and paid a tax, in that year.

On the 23d of July, 1816, Andrew Potter executed to the pauper a writing for the consideration of 50 dollars, whereby be released all claims to his services until the age of twenty-one. At this time, the pauper lived with one Clark. He afterwards went to Vermont, where he remained upwards of two years; then returned to Dickenson, where he remained a few weeks. After this he returned to Vermont, and came back in 1819, and boarded with his brother, sX Bangor, until 1821, when he became chargeable to that town. After the execution of the writing he never resided with his father, nor returned to his house, except, a few times, on a visit, when he remained a day or two, at a time.

The pauper’s father gained a settlement in Dickenson, having been assessed and paid taxes in that town for two years. The eleventh section of the poor act, directing the manner of dividing the poor, and by whom any poor person, who has gained a settlement, and becomes chargeable, shall be supported, does not affect this question; for the father did not gain a settlement until after the division of the town of D. The instrument relied on as an emancipation, is a nullity. The father could not, by such an act, devest the right of a derivative settlement. The cases in which an emancipation takes place, have always been decided on the circumstances of the son’s heing twenty-one, or married, or having gained a settlement in his own right, or, as in the case of a soldier, having contracted a relation which was inconsistent with the idea of his heing in a subordinate situation in his father’s family. (3 Term Rep. 356. Rex v. Wilton, Burr. S. C. 270. 1 Strange, 438. 831.)

We are, therefore, of opinion, that the pauper was settled in Dickenson, and that the order of the Court of Sessions be reversed.

Order of Sessions reversed,.  