
    The Trustees of Center Township, Guernsey County, Ohio, Plaintiffs in Error, v. The Trustees of Wills Township, Guernsey County, Ohio, Defendants in Error.
    When a new township is established, paupers haring residence within its territorial limits are chargeable upon it, though before charged upon the entire township from which it is taken, in whole, or in part.
    Adjourned from the county of Guernsey.
    This was an amicable action in debt brought by the trustees of Wills township against the trustees of Center township.
    The declaration contained one count and plea, the general issue. The suit was brought to recover for necessaries furnished to William Smith, a pauper, and submitted to the eourt of common pleas at October term, 1835, upon a statement of *faets. The court rendered judgment for the plaintiffs below, and this writ of error is prosecuted to reverse that judgment.
    The facts agreed and submitted to the eourt were substantially these: About twelve or fourteen years ago Center township was organized and included part of Wills township, which had been organized before. Smith, the pauper, had a settlement in Wills township, and owned land there, on which he had resided about six years before Center township was organized. Smith sold his land and left the county, and has remained out of the county over since, until 1835, but has gained no settlement since he left Wills township. When Center was organized, it included in its limits the farm on which Smith lived when residing in Wills township. Smith returned to Wills in 1835, and became chargeable, and has been supplied there; he was legally tendered to Center by Wills, but Center refused to receive him or pay Wills for supporting him.
    Isaac Parish, for plaintiffs in error:
    The plaintiffs in error think that it is no difference whether all or part of Center was taken from Wills, so far as their case is concerned, and refer for authority to Groten v. Shirley, 7 Mass. 156.
    2. There is a material difference between a legal settlement and an actual residence or inhabitancy at the time of erecting the new township, which is to be attended to in this case, and for authority refer to 4 Mass. 280, 390, 453,, 479; 6 Mass. 446; 7 Mass. 157.
    
      ' 3. They think the settlement is co-extensive with the township, and not affected by local habitancy, and the converse of this proposition is, that the liabilitj’’ to support on the part of the township is a corporate liability. Windham v. Portland, 4 Mass. 384-389, Judge Spencer’s opinion; Pike v. Union, 5 Ohio, 528, 529, Judge Wright’s opinion.
    4. They think, on common principles, this liability remains to Wills, under the circumstances of this case. See Brewster v. Harwich, 4 Mass. 278, Spencer’s opinion, p. 280; Windham v. Portland, 4 Mass. 384, Judge Spencer’s opinion, p. 390.
    5. They think the statutes under which Center was erected do not vary these principles. See 1 Chase’s Stat. 700, act *of February 19, 1810; 2 Chase’s Stat. 1089, act of January 24,1820.
    James M. Bell, for defendant in error:
    In this case the defendants in error make this single point: That in a new country like this, when the creation of new townships is of such frequent occurrence, the only reasonable and safe rule that can be adopted touching the settlement of paupers is to make the township chargeable which includes, within its bounds the territory on which the person to be supported is a pauper, had his last actual residence, and on which he had gained a settlement. Any other rule, it appear to me, would lead to great and innumerable difficulties, and, in some instances, would deprive a pauper of support entirely; for the cases are not rare, where the names of townships have been changed, or where, in the division of an old township into two or more new ones, the old name has been abandoned. The case of North Whitehall v. South Whitehall, 3 Serg. & Rawle, 120, is one in which it appears that an old township name was lost, and two new towns erected out of an ancient town, both taking new names. In such case, unless the rule I have suggested be the correct one, where would the pauper go for support, who had gained a setlcment in the old township, but was not an inhabitant at the time of the division? The old corporate name, to which so much magic seems to be attached, is gone entirely; and if the principles assumed by the counsel for the plaintiffs in error be correct, all liability for the support of paupers goes with it. The name is everything; the territory or locality, nothing.
    But a very few years previous to the time at which the pauper, Smith, sold his farm and left the country, the county of Guernsey was erected, the greater part of the new county being taken from the old county of Muskingum. Before that time, Wills township, Muskingum county, was in existence, and included within its bounds nearly the whole of what is now Guernsey county. The county of Muskingum has now no township named Wills. Suppose this man, Smith, having gained a settlement in Wills township, Muskingum county, had, previous to the erection of Guernsey, leit the county, and now come back a pauper, where is he chargeable? Wills ^township, Guernsey county, could hardly be made to bear the burdens of Wills township, Muskingum, county; and the last-mentioned name having now no existence, the pauper is completely without the means of support.
    The case of Mansfield v. Granby, 1 Root, 179, is very much like the case now before the court; .indeed, the facts are exactly similar. In that case the court make the defendants liable, “upon the principle, that had the pauper remained in Granby she would have been an inhabitant there. Her being gone out of the place at the time of the incorporation, and not having gained a settlement elsewhere, could make no difference in the reason and nature of the case.”
   Hitchcock, J.,

delivered the opinion of the court:

The simple question for the consideration of the court is, which' of these two townships are liable for the support and maintenance of this pauper?

A recurrence to our statutes for the organization of townships, and for the support and maintenance of the poor, prescribe no rule by which we are to be governed. The solution of the question must depend rather upon the sound discretion of the court than upon any principle of law. There are decisions, it is true, in some of the other states, and more particularly in the states of Massachusetts and Connecticut, which have a bearing upon the question. But the laws of those states, and the modes of incorporating townships, are so different from ours, that those decisions can not be held to be of binding authority. In these states, however, townships are incorporated by special legislative enactment; here we have a general law upon the subject, and the county commissioners .are authorized to divide old or set off new townships. There provision is usually made for the distribution of paupers, where a new township is incorporated, and this is necessary in consequence of the number of paupers. Here nothing is said upon the subject; and the reason undoubtedly is, that we have had but few of this description of persons among us.

We suppose that where, under our system, a new township is set off, all persons residing within the limits of that township, and who have resided there a sufficient length of time to obtain a settlement in the original township, have a legal settlement in the new township; and this, although at the time apportion of these inhabitants are actually paupers. This principle seems to be contradictory to that laid down by the court in the case of Pike Township v. Union Township, 5 Ohio, 528. It must be remembered, however, that that ease was decided upon the circuit, and experience teaches us that such decisions are, many times, made without that reflection which a case ought to receive before it is adopted as authority.

Upon the assumption that when a new township is set off, all persons residing within its limits have a legal settlement therein, it follows that had Smith remained at his domicile in Wills township, he would now have had a legal settlement in Center, and that township would have been chargeable with his maintenance. Shall the fact that he was away when Center was organized make any difference in the case? It seems to us it should not. In coming to this conclusion, we are in some measure, I may even say in a great measure, influenced by the pecular situation of the country. But a few years since, some townships were equal in extent to what are entire counties. Still, in some they are five or six' miles square, and the original township name is retained. It would be impolitic, it would be unjust, to compel the township thus limited to maintain all those who were paupers at the time of the division, or who, residing in other parts of tho country, have become such since the division.

It seems to us that there is nothing erroneous in the judgment of the common pleas, and it is, therefore, affirmed with costs.  