
    * The Inhabitants of Chelsea versus The Inhabitants of Malden.
    If a person, before the statute of 7 Geo. 3, c. 3, had been duly warned to depart from a town, so as to prevent his acquiring a settlement in such town, and, after the warning, removed from the town without an intention of returning, continuing absent long enough to gain a new settlement, and afterwards came bade, and dwelt in the town he had been warned to leave, he must have been again warned within a year from his return, or he would have gained a settlement.
    This was assumpsit for money expended in the support of Jacob Breden, alleged by the plaintiffs to be a pauper, and to have a legal settlement in Malden.
    
    Upon the trial of the cause at the last November term, in this county, before Parker, J., a verdict was found for the plaintiffs, subject to the opinion of the Court, upon the facts, as they should be reported by the judge.
    There was regular evidence to entitle the plaintiffs to recover the sum found by the jury, provided the legal settlement of the pauper was in Malden, so that the inhabitants of that town were chargeable with his maintenance; and whether they were so chargeable or not, is the question reserved for the opinion of the Court, upon the following facts, which appear from the judge’s report of the case.
    
      Jacob Breden, the pauper, was the son of Joseph Breden, whose deposition is in the case, proving that he, the deponent, was the son of Samuel Breden, which Samuel lived in Malden, in the year 1745, and before, at which time [1745j the witness was nine years of age; and that the said Samuel resided in said Malden until his death, which was in 1780. Previous to the year 1745, the said Samuel had removed from Malden, with his family, to Chelsea, where he resided eighteen months, and then returned to Malden. After his return, viz., in the spring of 1745, the constable of Malden, pursuant to an order from the selectmen, warned Samuel Breden, and Sarah, his wife, to depart out of the town, and to take all their children with them. They did not remove according to the warn ing, but remained in Malden, where Samuel Breden occupied real estate, and paid taxes for it.
    
      In December, 1759, the deponent went to work at Lynn for three months, but went home to his father’s house in Malden of nights. In March, 1760, beipg then of age, he hired himself, for a year, to a Mr. Cheever, of Lynn, at whose house he boarded and lodged. After the expiration of the year, he occasionally [*132 ] labored at Lynn, but made Malden his * home. In January, 1761, he was warned out of Lynn. In May, 1763, he married at Lynn, and in June, 1764, removed thither with his wife and one child, and resided there until April, 1770, when he removed to Malden, where he resided until February, 1807, when the deposition was taken. The pauper was born at Malden, in 1782, and has resided there until lately, when he came to Chelsea, in which town he has not gained a settlement.
    If, upon these facts, the Court should be of opinion that the legal settlement of Jacob Breden, the pauper, was in Malden, at the time the expense accrued to the plaintiff, which is the subject of this action, judgment to be rendered according to the verdict; otherwise, the plaintiffs to become nonsuit, and the defendants to recover their costs.
    The cause was briefly spoken to at this term by Gray for the plaintiffs, and Ward for the defendants.
    It being agreed that the settlement of the pauper, wherever it should be found to be, was derived from his father, be not having aimself gained a settlement in any place, Gray suggested several objections to the sufficiency of the warning to Samuel Breden to depart from Malden, in 1745. But the principal question arose on the warning from Lynn, in 1761, which, Gray contended, had an operation to prevent Joseph Breden from ever acquiring a settlement afterwards in that town. There was no necessity for a second warning upon his return in 1764. It was an intolerable burden upon selectmen, to keep a constant watch over the miserable hovels in which people of this description reside, to observe the going and return of such birds of passage. The statute does not expressly require it, and the inconvenience suggested shows that such should not be the construction.
    
      Ward
    
    insisted that Joseph Breden gained a settlement by his removing into Lynn, in 1764, and tarrying there a year, without being warned to depart; and he contended that a warning was necessary, as often as a person returned into a town, after an absence long enough to acquire a settlement elsewhere, as was the fact with respect to the pauper’s father in this case.
   *The Court took time for advisement, and their opinion was afterwards delivered, as follows, by

Parsons, C. J.

In this action, a verdict was found for the plaintiffs, subject to the opinion of the Court on the facts reported. The action was brought to recover of Malden the expenses of maintain ing Jacob Breden, a pauper, alleging that his settlement was in Malden. If his settlement is not in Malden, the verdict is to be set aside, and the plaintiffs are to become nonsuit.

It appears from the facts that the pauper has never gained a settlement in his own right, and that his settlement is derived from the settlement of his father, Joseph Breden.

Setting out with the known principle, that any man, having a legal settlement in any town in the state, does not lose it but by gaining a legal settlement in some other town in the state, let us from the facts determine the settlement of Joseph Breden, the father.

In March, 1760, being then of full age, and competent to gain a settlement in his own right, he left his father in Malden, and went to live in Lynn, and there dwelt a year, and thus gained a new settlement in Lynn, unless legally warned to leave the town within the year. After the expiration of the year, he returned to Malden, and there lived until June, 1764, not having been warned to leave that town In June, 1764, he, with his wife, removed to Lynn, and there dwelt until long after the 10th of April, 1767, not having been warned to leave that town, after he thus removed. In this manner he gained a settlement in Lynn, unless the objection of the plaintiffs should prevail.

It is objected that Joseph Breden lived at Lynn during a year commencing in March, 1760; that before the year he was duly warned to leave that town; that a return of the warning, with the other requisites of the statute, was made to the sessions ; and that having been once duly warned, and a return having been le gaily made, he could never, by any future residence in Lynn, gain a settlement there. The legality of this warning and return is denied by the defendants, but we do not think it necessary to decide this point.

* By the statutes of 4 Will, and Mar. c. 13, and 12 [ * 134 ] and 13 Will. 3, c. 4, considered together, it is provided that, if any person come to sojourn or dwell in any town, and be there received and entertained by the space of twelve months, not having been warned by the constable, or other person whom the selectmen shall appoint for that service, to leave the place, and the name of such person, with the time of his abode there, and when such warning was given, returned into the Court of Quarter Sessions, every" such person shall be reputed an inhabitant of such town, and the proper charge of the same.

From this provision it appears to us that, when a man has come to sojourn and dwell in any town, and he has been warned, and a return has been duly made within the year, he cannot gain a settlement by continuing his residence there any length of time whatever; nor, perhaps, by returning after a temporary absence, too short to enable him to gain a settlement by residence elsewhere ; for his domicile may be considered as remaining, and it may be reasonably supposed that he absented himself with the intention of returning. But if, after the warning, he remove from the town, without an intention of returning, continuing absent long enough to gain a new settlement by residence, and afterwards come back and dwell in the town he had been warned to leave, he must be again warned within the year, for he now also comes to sojourn and dwell there ; and if he be not so warned, by living there a year, he wil gain a new settlement.

This distinction comports with the words of the statutes; for a man may come to sojourn and dwell in the same town in which he formerly had his domicile ; and it is consistent with the intent of the statute to give the town another option, whether it will, or will not, receive the sojourner as an inhabitant. When he first came, he might be without property, and, when sick, chargeable tó the town; but when he shall come into the town again, he may have a large estate, and may be a valuable acquisition to the town as an inhabitant.

Let us apply this rule to the facts reported. From March, 1760, to March, 1761, the pauper lived, as a hired man, in Lynn. He then left the town, and dwelt in Malden, until June, 1764. Then, with a wife he had married the preceding [*135 ] *May, he moved into Lynn, to live there. This we consider as going to sojourn and dwell in Lynn, within the intent of the statute. There he abode until 1770, not having been warned to leave that town. He therefore gained a settlement in Lynn. It is not necessary further to trace the motions of the man; for the statute of 2 Geo. 3, c. 3, was then in force, by which no settlement could be gained by residence or birth. Joseph Breden’s settlement has remained in Lynn; and his son Jacob, the pauper, born in 1782, having gained no settlement in his own right, has a derivative settlement in Lynn with his father.

The verdict must therefore be set aside, and the plaintiffs be called.

Plaintiffs nonsuit  