
    The Inhabitants of Westborough versus The Inhabitants of Franklin.
    The agreement of towns cannot affect the settlement of their inhabitants. Therefore, where a part of a town was about to be incorporated into a new town, and it was agreed that those who should afterwards become chargeable as paupers should be supported by the town from whose territory they derived their settlement, it was holden that the original town was still liable to others for the support of one whose settlement was derived from the territory composing the new town, but who was not an inhabitant at the time of its incorporation.
    Assumpsit for the support of Thomas Cook, a pauper said by the plaintiffs to be legally settled in Franklin. At the trial before Putnam, J., it was in evidence that Cornelius Cook, the father of the pauper, resided in that part of Wrentham which is now Franklin more than a year before April, 1767, having removed thither in the year 1755. There was no legal evidence of his having been warned out of Wrentham; nor was there any evidence that the pauper had gained a settlement in his own right. He was thirty-nine years of age when the town of Franklin was incorporated, * viz., in the year 1778, and several years before had left his father’s family, and continued absent at the time of the said incorporation.
    The plaintiffs contended that, by virtue of the act by which Franklin was incorporated from a part of Wrentham, the pauper became legally settled in Franklin. Tt is provided, by that act, that “ the said town of Wrentham and tow n of Franklin shall severally be held punctually to stand by, and perform to each other, the terms and proposals contained and expressed in a vote of the town of Wrentham, passed at a public town meeting on the sixteenth day of February, 1778, according to the plain and obvious meaning thereof.” The said vote stated, among other things- “ that the poor of the town shall be divided as follows, viz., the widow Mann, &c., to remain to Wrentham; and the widow Wilson, &c., to be maintained by the petitioners, (Franklin.) But all the poor that shall arise to the town hereafter, from any settlement heretofore gained by coming into this town, shall be maintained by each precinct where they gained their settlement; and that each precinct maintain all their inhabitants, for the future, that shall be on either side at the time of iivision.” •
    The judge being of opinion that the said agreement did not affect the settlement of the pauper, but was an arrangement, or contract, which the towns of Wrentham and Franklin may enforce by action, he directed a nonsuit, subject to the opinion of the whole Court.
    
      Lincoln, for the plaintiffs,
    argued that the legislature have authority to fix the legal settlement of persons;  and that the effect of the agreement of the two corporations, evidenced by the vote .of Wrtntham, must be the same as if it had been inserted, totidem verbis, in the act of incorporation. Under this vote, the pauper, in the present case, was to be the charge of the defendants; and, of consequence, the plaintiffs have a right to recover.
    
      Sumner, for the defendants.
    Admitting, for the purpose of this argument, that the father of the pauper acquired a * settlement in Franklin, by force of the act of incorporation and the vote of Wrentham, still, the pauper being then absent, his settlement could not be affected. He still retained his settlement in Wrentham. 
      
    
    This vote was passed before the incorporation, when there were no contracting parties ; of course no one was bound by it as an agreement. So the legislature must have considered, or they would not have thought it necessary to sanction it. But the agreement of towns cannot determine the settlement of individuals.  In this case, the pauper has his legal settlement in Wrentham. That town therefore, if any, is answerable to the plaintiffs; and whether the defendants are liable to indemnify Wrentham, is a question not to oe determined in the present action. In the act incorporating West Boylston, upon which the question arose in the case of Great Barrington vs. Lancaster, the provision was enacted by the legislature ; but in this case it was no more than an agreement or contract of the parties; if, indeed, it amounted to so much.
    The cause stood over for advisement; and, at the following April term, the opinion of the Court was delivered by
    
      
       10 Mass. Rep. 506, Hamilton vs. Ipswich. — 6 Mass. Rep. 501, Dalton vs. Hins dale,—14 Mass. Rep. 253, Great Barrington vs. Lancaster.
      
    
    
      
       4 Mass. Rep. 384, Windham vs. Portland.
      
    
    
      
       4 Mass. Rep. 281, Brewster vs. Harwich, in Error. — 3 Salk. 253, Harrison vs. Lewis. 4 D. & E. 251, Rex vs. The Inhabitants of Lubbenham.
      
    
   Parker, C. J.

The piauper’s settlement is in Wrentham, unless, by the act incorporating Franklin, it has been transferred to the latter town. The act makes no specific provision; and, according to the principle settled in the case of Windham vs. Portland, cited in the argument, none become settled in the newly incorporated town, ex vigore statuti, but those who were within its limits, or had their home there, when the act passed, unless there were some provision upon the subject in the act.

The pauper, in the case at bar, was not a member of his father’s family when this act of incorporation passed; he was upwards of twenty-one years of age; and he was absent at the time, and had been absent several years before the incorporation. He did not, therefore, gain a settlement in Franklin by virtue of its incorporation.

* It is contended, however, that, as there was an agreement, at the time of the division of the town, that such paupers as should become chargeable should be supported by the town within whose limits they had their settlement, which agreement was sanctioned by the legislature, —-and as the pauper had his settlement in the part which has become Franklin, — this is to be considered as the town of his lawful settlement.

But the agreement of the two towns cannot alter the law, and the legislative provision merely sanctions that agreement — the only-legal effect of which is, to oblige Franklin to reimburse Wrentham, in case the latter is called upon to pay other towns for the support of paupers legally chargeable to Wrentham, but for which Franklin is liable by the agreement.. This decision is in conformity to the case of Brewster vs. Harwich, cited in the argument,

Costs for the defendants. 
      
      
        Fitzburgh vs. Westminster, 1 Pick. 144.— West Boylston vs. Boylston post, 261. — Shrewsbury vs. Boylston, 1 Pick. 105.
     