
    The Inhabitants of Abington, Plaintiffs in Error, versus The Inhabitants of Boston.
    Before the statute of 7 Geo. 3, c. 3, a mariner gained a settlement in a town by making his home therein, and following the business of his profession therefrom.
    Error to reverse a judgment of the Court of Common Pleas for the county of Plymouth, August term, 1806, rendered upon the complaint of the plaintiffs in error, in which they prayed that the legal settlement of Thomas Seymour, a pauper, and his wife, might be adjudged to be in Boston.
    
    The evidence in the case, as stated in the Common Pleas pursuant to the statute, was, “ that the said Thomas Seymour, the pauper, was born in Boston, in September or October, 1743 ; that his father was a native of England, and his mother of Rhode Island. The father lived in Boston at the time of the birth of the pauper, and previous thereto, and died there. Some time after, the pauper lived in Boston, Dorchester, and Braintree, until he was fifteen years of age, when he entered as a soldier in the provincial service against ihe French. In 1763, he was discharged from the service, returned * from Nova Scotia to Boston, resided [*313] there two or three days, and from thence went to Barn-stable, in the county of Barnstable, where he engaged in the business of a mariner, in the whale fishery, in West India and coasting voyages. He continued in Barnstable about two years, boarding with a Mr. Fuller, a selectman of that place, when on shore, which did not exceed six weeks or two months at any one time. He then removed from Barnstable to Sandwich, where he continued following the same business as at Barnstable. He made his home at Sandwich until some time after the year 1767, during which time he once resided on shore at Sandwich six months at one time, being confined with a wound in his leg.
    The said pauper was not warned to depart from either of the towns of Barnstable or Sandwich, during his residence in those towns respectively.
    Upon these facts, the Court of Common Pleas adjudged that the legal settlement of the pauper and his wife was not in the town of Boston.
    
    To reverse this judgment, and to obtain a judgment of this Court that the settlement of the said pauper is in Boston, this writ of error s brought.
    
      G. Blake, for the plaintiffs in error,
    argued that the pauper, havng originally had a legal settlement in Boston, could not lose that settlement but by gaining a new one in another town. He could not lose it by going into his country’s service as a soldier. His removal to Barnstable and Sandwich was only for the more convenient exercise of his business as a mariner, and the case finds that he never resided at either of those places for more than six weeks at any one time. As to the expression that he made his home at Sandwich, it must be taken in connection with the other facts, which show that he was all the time a transient, seafaring man. His confinement by lameness for six months at one period, being a providential misfortune, cannot affect the legal rights of the parties.
    By the law  then in force in this government, no stranger coming into a town could gain a settlement, so as to charge * such town with his support in case he became [ * 314 ] a pauper, but by twelve months’ residence without warning, or the approbation of the selectmen, or of the town. It is true this man was never warned from Barnstable or Sandwich; but then lite transient desultory residence of a sailor constantly employed in sea voyages is not such a residence as must have been contemplated by the statute.
    
      Thatcher, for the defendants in error,
    acknowledged that it was incumbent on them to show that the pauper had gained a new settlement, or the town of Boston must be chargeable. And he thought the facts disclosed in this case abundantly showed a settlement gained either at Barnstable or Sandioich ; and for the decision of the present case, it was entirely immaterial at which of those places the settlement was gained. He made his home for several years in one and the other of those places, and two years in each of them. The construction which the plaintiff’s counsel put upon the statute, viz,, that the residence, to gain a settlement, must be continuous, and without any interruption, or even an excursion for business or pleasure, is too narrow and inconvenient to receive the countenance of the Court.
    That this person’s residence was not secret or clandestine while at Barnstable, appears from his living with one of the selectmen of the town, whose office it was to warn such strangers as they wished to protect the town against. This person was then young and vigorous, and his settlement there was probably considered rather as an acquisition than a burden. The statutes of 10 G. 2, c. 3, and 13 G. 2, c. 1, show that the legislature contemplated that some towns might be clandestinely and unexpectedly burdened by strangers gaining a settlement, and provision is made for their indemnity by an action against those who harbored them. This indemnity is open to Barnstable and Sandwich, but Boston cannot claim it.
    
      Blake, in reply,
    cited the case of Rex vs. Walpole. 
      
    
    
      
       12 and 13 W. 3, c 10
    
    
      
       1 W. Black. Rep 669. — Burr. Sett. Cases, 638. S. C.
    
   The Court

(except the Chief Justice, who did not sit in this cause) affirmed the judgment of the Common Pleas, and said [*315] * there could be no doubt that a mariner, making his home in any town for more than a year, and following the business of his profession therefrom, acquired a settlement in such town. They gave no opinion whether, upon the facts in this case, the settlement of the pauper was in Barnstable or Sandwich, bul clearly it was not in Boston,

Costs for the defendants 
      
      
         [Commonwealth vs. Walker,post, 556. — Granby vs. Amherst, 7 Mass. Rep. J. — Cutts vs. Haskins, 11 Mass. Rep. 543. — Lincoln vs. Hapgood, 11 Mass. Rep., 10 Pick 77.— Green vs. Green, 11 Pick R. 410. — Ed.]
     