
    The Inhabitants of Lancaster versus the Inhabitants of Sutton.
    A new town was formed of parts of several old towns. Sundry inhabitants with in the limits of the new town were, with their estates and the heirs and assigns of such estates, to remain to the towns to which they had before belonged; but were authorized at their pleasure afterwards to transfer themselves and their estates to the new town. A., an inhabitant so situated, sold his estate to and- removed elsewhere. B. afterward availed himself of the privilege, and became, with the estate he had so purchased, a part of the new town. It was holden that the settlement of A. was not. thereby affected.
    Assumpsit to recover of the defendants the sum of 29 dollars, 17 cents, expended by the plaintiffs in the support [*118] * of one Sarah Savary. a pauper, whose settlement was alleged to be in Sutton.
    
    Upon the trial of the action, upon the general issue, before the Court of Common Pleas, it was proved or admitted that the pauper once had a derivative settlement from her father, John Savary, in Sutton, where she was born in 1750 ; that she lived with her father as a member of his family, until he removed from that part of the country in 1802, when she removed with him; that the said John, at the time of the incorporation of the town of Ward in 1778, lived in that part of Sutton which was included within the limits of Ward; that after said incorporation, and until his removal in 1802, he was taxed for his poll and estate in Sutton, and in all respects acted as an inhabitant thereof, agreeably to a proviso in the act incorporating Ward; that he, with sundry other persons named in the act, should, with their respective estates, be accounted as parts of the several towns which went to constitute the town of Ward, so long as they severally, or their heirs or assigns of .the same lands, should see cause; and upon signifying in writing their intention to the cleric of the town to which they so belonged, the persons so named, or their heirs or assigns of the same lands, should thenceforth become inhabitants .of Ward; that in 1801 the said John S. sold his estate to one Thomas Green ; who, as assignee of the said John S., on the 22d of April, 1802, availed himself of the provision aforesak, signifying his intention to become an inhabitant of Ward. It cid not appear whether the said John S. removed before or after Green had so signified his inter tian; but he resided on the same farm until his actual removal fiom Ward.
    
    Upon this evidence the Court below were of opinion, and so instructed the jury, that the settlement of the said John S. and ot consequence that of the pauper, his daughter, was in the town ol Ward. «
    
      It was proved by the defendants, that the farm of the said John S. was, before the incorporation of Ward, within *the limits of the north parish in Sutton; and they con- [ * 114 ] tended that, if his settlement was not transferred to Ward by virtue of the proceedings before stated, yet, by the act incorporating the town of Millbury, his settlement, with that of his daughter, was transferred to that town.
    The town of Millbury was formed, by the act incorporating it , of all the lands comprised within the north parish in the town of Sutton ; and it was provided in the said act, that the inhabitants of Millbury should support and maintain all such persons, as theretofore had been, then were, or thereafter might be inhabitants of that part of Sutton thereby incorporated, and were or might become chargeable, according to the laws of the commonwealth, and who had not obtained a settlement elsewhere therein.
    A verdict having been returned for the defendants under the direction of the Court of Common Pleas, the plaintiffs filed their exceptions by force of the provisions of the late statute, and the action was transferred to this Court.
    
      Lincoln, for the defendants,
    being called on to support the verdict contended that the settlement of John S., which was originally in Sutton, and continued in that town notwithstanding the incorporation of Ward, was transferred to this last town in 1802, when Green, as the assignee of Savary, transferred the territory, to which the settlement was attached, to Ward ; and for this he relied on the tenth mode of acquiring a settlement pointed out in the statute of 1793, c. 34, § 2. This effect would be produced, whether Savary was resident on the land at the time of its annexation to Ward, or not .
    If the territory in question did not become a part of Ward by the act of Green, the assignee of Savary, it was still a part of the north parish in Sutton, and all the territory of that parish being formed into the town of Millbury, the territory became a part of this last town, still charged with the settlement of Savary.
    
    
      Smith, for the plaintiffs.
    
      
      
        Stat. 1813, c. 12.
    
    
      
       See 4 Mass. Rep. 384, Windham vs. Portland. —14 Mass. Rep. 253, Great Barrington vs. Lancaster.
      
    
   Parker, C. J.,

delivered the opinion of the Court. * The principal question in this action is, whether John [ * 115 ] Savary, the father of the pauper, in consequence of the act of Green, his assignee, had his settlement transferred from Sutton to Ward.

By the provision of the act incorporating Ward, Savary was to remain an inhabitant of Sutton, until he, his heirs, or assigns, should terminate their connection with that town, in the manner therein prescribed. It cannot be the true construction of this provision, that the act of his assignee should affect his habitancy. Its true intent is, that his heirs and assigns should remain inhabitants of Sutton, until they should voluntarily transfer themselves to Ward. Green, his assignee, having availed himself of the privilege, became thenceforth an inhabitant of Ward. If Savary, when he parted with his estate, had removed within the limits of Sutton, his settlement would never have been interrupted. Something then was necessary to be done by him personally, in order to his- gaining a settlement in Ward. Upon the sale of his estate no change took place. Had he continued to reside on it, until Green transferred it to Ward, he might have been considered as removing into Ward; and he would have gained a settlement there by future residence, or acts under the provisions of the statute of 1793, c. 34. But he removed before such settlement had been gained; and it does not appear to what place he removed.

The pauper was, at the time Ward was incorporated, of sufficient age to gain a settlement in her own right; but living with her father, on the farm which was excepted out of Ward, she cannot be considered as being an inhabitant of Ward when it was incorporated ; so that she gained no new settlement, and must have that of her father in Sutton.

We think it still more clear, that the pauper did not obtain a settlement in Millbury by the incorporation of the north parish in Sutton into a town by that name; for at the time of that act of incorporation, the farm of Savary had become a part of [ * 116 ] the town of Ward by the act of * Green, the assignee of Savary: so that it ceased to belong to the north parish in Sutton; unless otherwise provided by the act of incorporation. For when the contingency, provided for in the act of incorporation of Ward, relative to the farm of Savary, happened, it was to all intents and purposes a part of Ward, in the same manner it would have been, if it had never been excepted in that act.

The consequence is, that the original settlement of the pauper in Sutton has never been interrupted. The verdict must, therefore, be set aside, and a new trial be had at the bar of this Court.  