
    Trustees of Bloomfield v. Trustees of Chagrin.
    ' The mother of an infant pauper settled in one township, does not change the infant’s residence, by marrying a second husband settled in another town- . ship, and there residing without the infant pauper.
    The plaintiffs declared in debt for two hundred dollars under the act for the relief of the poor. 22 Ohio L. 331. There are two .counts: 1. That one Richard Brown, who had his legal settlement in Chagrin, came into Bloomfield and became lame, diseased, a pauper, and unable to support himself, by reason whereof the plaintiffs were obliged to provide for his support during his illness, and to expend large sums for necessaries and medical aid, viz: two hundred dollars, and that so the defendants became indebted to the plaintiffs in the sum of two hundred dollars. The second count is for meat, drink, etc., furnished for one Richard Brown,-a pauper and inhabitant of Chagrin, who became sick, etc., in Bloomfield. Plea nil debet, with a notice of special matter in bar.
    Upon the trial, before the jury, it was agreed by the parties that the father and mother of the pauper were legally settled in Hampshire county, Massachusetts, and that the father died there' in 1820, leaving the mother a widow, and Richard, the pauper, an infant. The mother, with her infant son, afterward removed to Chagrin, in Cuyahoga county, and resided there one year and three months from January 15, 1823, without being warned out, and there married Levi Brown, who was then a resident of Perkins, in *the county of Huron, and had a legal settlement there.. She removed with her husband another township, Cuyahoga county, where she died in five months thereafter. Richard, the pauper, did not go with his mother, but resided in some .township in Geauga county, for eighteen months, and then at Bloomfield, in Trumbull county, became disabled by a wound, and a township charge. At the commencement of this suit he was still in his minority. The overseers of the poor in Bloomfield removed the pauper to Chagrin, and offered him to the trustees, who refused-to receive him. They, at the same time, presented their account and demanded payment, which was also refused. Upon these facts the jury found a special verdict for the plaintiffs : Debt, one hundred and twenty-one dollars and seventeen cents (the amount of the account), and ten dollars and forty-nine cents damages, if the court should be of opinion, upon the facts, that the pauper, on April 1, 1830, had a legal settlement in Chagrin ; but if the court should be of opinion, upon the facts, that at that time the said pauper had no legal settlement in Chagrin, then the jury found for the defendants. The questions arising on this yerdict were adjourned for decision here from Trumbull county.
    C. Pease, for plaintiff,
    cited 3 Ohio, 94; 4 Black. Com. 488.
    Card, contra,
    cited 22 Ohio L. 381; 9 Mass. 201.
   Judge Wright

delivered the opinion of the court:

By the law of Ohio, 22 Ohio L. 320, persons residing more than one year in any township, without being warned to depart, gain a settlement in such township. The same act provides that in case a pauper shall require relief in any other than the township of his settlement, the overseers of the poor shall provide for him, and when he is in proper condition to be removed, shall remove him to the township of his settlement; and if payment of all reasonable charges and expenses for the support and removal be refused, the same may be recovered by action of debt.

The mother of Richard Brown, after the death of his father, acquired a legal settlement in Chagrin. Richard, *being then a minor with his mother, acquired from her a derivative settlement in the same place. At common law and upon general principles all persons incapable of gaining a settlement in their own right, have that of the person upon whom they depend for support, and who has control of their persons and a right to their services. Upon this principle children have the settlement of their fathers, and femes covert that of the husband. 16 Mass. 123; 17 Johns. 89; 20 Johns. 282; 3 Ohio, 101. At the father’s death the mother becomes head of the family, and until the law otherwise disposes of them, has the same control over the minor-children that the father had, and the child being incapable of acquiring a settlement for himself, derives one from her. 1 Burr. Set. Cas. 64; 1 Ld. Raym. 41; 2 Ld. Raym. 1473; 2 Strange, 746; 16 Mass. 139; 17 Johns. 41; 20 Johns. 1452. Richard Bi’own, having acquired through his mother a legal settlement in Chagrin, did not lose it by his residence in Geauga county, though for a longer period than a year, because being still a minor, he had no capacity to acquire a settlement for himself. 3 Ohio, 103.

The counsel for the defendants insist that the settlement of the mother, by her second marriage, was drawn to that of her second' husband, and that a derivative settlement was thereby cast upon her infant son in Cuyahoga, or in Perkins, in Huron. Ms. Justice Powell, in Cumner v. Milton, 2 Salk. 528, thus lays down the law: “A mother can not gain a settlement for her children by a former husband in the parish where her second husband is settled, being under coverture, and having a settlement there herself, only as a part of her husband’s family.” See also 14 Petersd. Ab. 315. In Salk. 482, pl. 35, it is said the children of the first marriage, under seven years of age, shall go with the mother only for nurture, and be kept by her at the charge of the parish where they are settled. As we understand the law, th'e settlement which a mother derives from her husband by marriage, is not cast upon her children by a former marriage. The second husband has no legal control over his wife’s children, by a former marriage. He has no right .to their services, and is not bound to support them; consequently they can ^derive no settlement from him. 1 Burr. Set. Cases, 2; Carth. 449; 16 Mass. 52, 140; 14 Petersd. Ab. 315. The settlement of Richard Brown upon the facts was in Chagrin, on April 1, 1830.

The defendants have filed a motion in arrest of judgment, upon two grounds: 1. Because it does not appear in the declaration that Brown had a legal settlement in Chagrin. 2. Because it does not appear that Brown had not a legal settlement in Bloomfield. This is a special verdict and subject to the control of the court, and if it be true that one count is bad and the other good, it will be applied to the good count. The first count is, unquestionably, free from the objections taken, and good in law. The verdict will be entered on that count. We leave untouched the objections urged to the second count.

Judgment for the plaintiffs on the verdict.  