
    The Inhabitants of Huntington against The Inhabitants of Oxford.
    WRIT of error.
    • This was an action of assumfisit against the town of Huntington, to recover moneys expended by the town of Oxford, for the support of William Yeatcs, a pauper, and his family. A special verdict was found, stating the so facts. Yeates, the pauper, was born in Huntington, on the 2d of November, 1781, out of lawful wedlock, and a bastard, his mother then and still being an inhabitant of Huntington. In May, 1798, in pursuance of a parol agreement between his mother and Lemuel Beardsley, of Oxford, and by consent of his mother, he went into the town of Oxford to learn with Beardsley the art, trade and mystery of a saddler, and lived with Beardsley in Oxford until he was twenty-one years of age. After that time he was married, and continued to live in Oxford until the 1st of October, 1807, when he first became chargeable. During his residence in Oxford, he had no guardian, unless his mother may be considered as such by nature, and no master, unless his living with Beardsley in the manner and under the circumstances above stated, constituted Beardsley his master. Upon this verdict the county court gave judgment for the plaintiffs, and a writ of error being brought, the superior court affirmed their judgment.
    
      Residence dnringinfancy gaia a settlement. at the close of the sixth sec-to the provi- , . , , . . . tion ot the act relating to the admission of inhabitants {tit. 91.) extends sions of the fourth section.
    Where an infant who was a bastard, went, in pursuance of a parol agreement between his mother and a mechanic, and by his mother’s consent, into a different town from that of his settlement» to learn a trade, and there lived with such mechanic in the situation of an apprentice until he was twenty-one years of age; it was held, that he was an apprentice within the meaning of the proviso.
    
      June, 1810.
    
      Ingersoll and Mills, for the plaintiffs in error.
    The stat. tit. 91. s. 4. provides, that any inhabitant of any. town in this state may remove into any other town, and shall gain a legal settlement there after having resided there, and supported himself for the term of six years, In this case, the pauper resided in Oxford, after his removal from Huntington, the place of his birth, and of his mother’s settlement, without becoming chargeable for his support, from May, 1798, to October, 1807, a term of more than nine years. But it is objected, that for about four years and a half of this time the pauper was a minor, and an a/i/irentice.
    
    1. Can a minor gain a settlement by residence? The words of the statute are- certainly broad enough to include minors. The terms used are “ inhabitant” and “ person than which, with reference to this subject, none more general can be found in our language. No distinction of age, or sex, or condition, is made. These terms used in any statute will include minors, unless such construction would be plainly inconsistent with the general law, or some other particular statute. In The King v. Wilton, &c. 3 Term Befi. 356. Lord Kenyon recognises the doctrine, by irresistible implication, that a minor may gain a settlement in his own right. A minor may be sui juris in other respects. He may contract for necessaries. He may hold a military office.
    2, Is this case within the proviso annexed to the sixth section, on the ground that the pauper was “ an apprentice under age ?” In the first place, it is to be observed, that we claim that the pauper gained a settlement in Oxford by virtue of the provisions of the 4th section. The proviso ex vi terminorum extends only to the fifth and sixth sections. That it was not, and could not have been, intended to apply to the fourth section, is evident from the fact, that the fourth section was not in existence when the proviso was passed. In the editorial notes to this statute, we are informed, that the fifth and sixth sections were passed in October, 1789, and that the fourth section was passed in May, 1792. The object of the fifth and sixth sections is,to provide for the removal of persons, who have come from another state, before they have gained a settlement. The proceedings are marked with some severity. If such per- . sons refuse to depart, on warning given for that purpose, they are liable to be fined, and if unable to pay the fine, to be “ whipped on the naked body not exceeding ten stripes.” Then comes the proviso, that nothing contained in these sections shall be construed to affect apprentices under age. They were to be protected from these rigorous proceedings. This is very natural and consistent. But it would be absurd to extend the proviso by construction to another section, not named in the proviso itself, relating to a distinct subject.
    But aside from these considerations, we contend, secondly, that this case is not within the proviso, because Yeates, the pauper, was not an afifir entice ; and this on two grounds. First, his mother, by whose consent he went to live with Beardsley, had not the fiower to make him an apprentice. The pauper being a bastard, he had, in legal contemplation, no father. The special verdict finds, that he had no guardian, unless the mother was such by nature.
    The statute relating to “ Guardians,” tit. 84, provides, that any minor of age for choosing a guardian, having neither father, guardian, nor master, shall be notified to appear and choose a guardian. The mother is not mentioned. The fair inference is, that the legislature did not consider her, like the father, guardian by nature. In Burk v. Phifis, 1 Root, 487 this point was decided by the superior court. The case of the mother is there expressly distinguished from that of the father; the latter being natural guardian, the former not. It is true, that the court afterwards decided in Fields v. Law, 2 Root, 320. that the mother, upon the decease of the father, is the natural guardian of her female children, until the age for choosing guardians ; but that decision does not affect our case. The minor in question was not a female child, and the age for choosing guardians had elapsed before he went to Oxford to learn a trade. Secondly, admitting that the mother had the power, still she did not exercise it in such a manner as to constitute her son an afi-firentice. There were no indentures; no binding out; nothing but a parol agreement between the mother and Beardsley. Wherever the statute speaks of the manner of constituting an apprentice it is by binding out. See tit. 33. s. 6. and tit. 130. Ss 5. Does this mean a fiarol agreement ? Could a master recover for an apprentice’s not staying out his time, where the binding was only by parol ? In England, a binding out is clearly necessary to constitute an apprentice. 1 Bla. Com. 426. 4 Bac. Mr. 557,558. Gwill. edit. Burr. Set. Ca. No. 103, 104. 127. There is nothing peculiar in our laws to dispense with it here.
    
      Stafiles, for the defendants in error.
    1. A minor cannot gain a settlement by residence. When the law speaks of persons, it does not include infants ; it speaks only of such as the law recognises civiliter as persons- In criminal cases, it is true, a different rule prevails. An infant, on the ground of contract can never be made liable ; not even for necessaries. In that case he is made liable only on the ground that a bill in equity would lie against him. He must pay only as much as the necessaries are worth, whatever contract he may have made. It is provided by statute, (tit. 155. c. 1. s. 1.) that there shall be appointed, by the county courts respectively, from time to time, 8cc. “ one or more persons in each county to be county surveyors.” But can the county court appoint a minor to be survey- or ? Another statute (tit. 146. c. 1. s. 16.) authorizes the sheriff to “ depute any meet person to serve any particular writ.” But it is an adjudicated point, that a minor cannot be deputed to serve a writ. The word “ inhabitants” is to receive the same restricted construction whenever the subject matter requires it. The selectmen are authorized, in certain cases, “ to assess the several inhabitants of their town.” (Tit. 143. s. 1.) But it was never thought that they could assess persons of every age and condition who were in fact inhabitants of their town. Can towns appoint minors to be listers, inspectors, &c. ? This will not be claimed; and yet the words of the statutes providing respectively for their appointment are general.
    Further, if a minor can gain a settlement by complying with the provisions of one part of the statute, he may by complving with those of another part. Suppose a" minor should claim a settlement by virtue of, the first section, on the ground that he had been appointed to, and had executed, some public office ; would such a claim be allowed ?
    In East Hartford v. Middletown, in error, 1 Root, 196. it was held, that the pauper, who was an idiot, had gained a settlement, not in her own right, but in her mother’s. As to the point in discussion, idiots and infants are upon the same footing: neither are persons sui juris.
    
    In Salisbury v. Fairfield, 1 Root, 131. it was held, that a ward residing with his guardian did not gain a settle» ment by such residence.
    In England a minor cannot gain a settlement in his own right, except by some statute provision. 3 Term Refi. 355. 3 Burn's Just. 313. [Reeve, J. In what case can an adult gain a settlement in England at common law ?] I suppose he cannot in any case. The common law confines settlement to the place where one is born.
    2. The case of this pauper comes within the proviso of the statute. Though the proviso firimá facie éxtends only to the fifth and sixth sections, yet those sections are referred to by, and connected with, the fourth section, so that if the former are affected by the proviso, the latter must necessarily be so. It is of no importance when these several sections were originally passed : the whole act came under the consideration of the legislature, and received its sanction as it now stands, at the revision in, 1795.
    The pauper in this case was unquestionably an apprentice in point of fact. This is sufficient for our purpose., In England, it is true, an apprenticeship cannot be constituted by parol. There must be a writing — a deed— an indenture. A deed-poll is not sufficient. 1 Batts' Poor Laws, 526. 528. 530. But all this results from the positive provisions of statute. No such provisions are to be found in our statute book. Merrick v. Dickinson, before the superior court in New Haven cpunty, was an,. action on the case for enticing away the plaintiff’s apprentice. The defendant offered to show, that the boy claimed by the plaintiff to be tin ¡apprentice was not Sound by indenture. But the court rejected the evi* dence, and sustained the action on the proof of appren? ticeship in fact. If the selectmen of a town find a minor serving as an apprentice in fact, they are to consider him as such. They have nothing to do with the kind of evidence by which the contract between the master and apprentice shall be shown.
    The power of the mother over her child in this case has been called in question. But it has not been shown, that the mother of a bastard child may not put him out as an apprentice.
    The law has gone far enough in denying to a bastard child a father. It never has said, that such a child has no mother. She is emphatically in loco parentis: she is both father and mother. She is entitled to the custody of the child, its nurture, and education. She may maintain an action for its seduction.
    It has been decided in England, that a marriage in fact will give a settlement. Suppose in this state, there should be a marriage by a grand juror ; would it not be sufficient for the purpose of settlement.
   Edmond, J.

This is a question of settlement. From the facts stated in the special verdict it appears, that Yeaten was born in Huntington, and that his mother, at the time of his birth, was an inhabitant of Huntington, and so remains. Whether, therefore, the settlement of a bastard follows that of the mother, or is attached to the place where it happens to be bom, Yeates must be Considered as an inhabitant of Huntington; and that town must be liable for his maintenance, unless dis charged from that liability by the pauper’s gaining a settlement for himself in the town of Oxford, or elsewhere. Did Yeates then, gain a legal settlement in Oxford? 1 think not; for although he in fact resided in Oxford. more than six years < successively before he became chargeable, yet a part.'Of that time he was a minor under the age of twenty-one years, viz. until the 2d of November, 1802; and he became chargeable in less than six years from that tinr^ I know it is contended, that the words in the act relating to the admission of inhabitants (tit. 91.) are general, “ any inhabitant;” that,they extend to minors and apprentices as well as adults, and that six years’ residence after the age of twenty-one is not necessary. The words “ any inhabitant,” as used in this statute, when taken in connection with the subject matter, and the acts contemplated to be done, cannot with propriety be considered in an unlimited sense ; they must be restricted to persons sui juris; to persons eaftable of doing the acts contemplated to be done ; and who, by their own authority, at their own election, may do those acts. To extend the construction so as to embrace idiots, who have no will of their own, would be absurd. To extend them to femes covert, minors, apprentices, or others standing lawfully in a subordinate situation, and owing duties inconsistent with the idea of self direction and self government, would strike at the most important relations in society.

We may inquire, then, what was the actual situation of this pauper, during his residence with Beardsley, and before he attained the age of twenty-one ? Pursuant to a parol agreement between his mother and Beardsley, and with her consent, he went to Beardsley, and lived with him, to learn a trade. Without considering whether the mother, as natural guardian, could bind; or whether the contract could be inferred between the parties ; it is evjj-dent, that the intent with which he removed to Oxford, and the objectin view in continuing there, was to serve as an apprentice, and learn a trade ; and that he did voluntarily, and with his mother’s consent, place himself and remain in the character of an apprentice until he was twenty-one. He became, then, apprentice to Beardsley in fact. Beardsley was his master in fact. The relative duties of master and apprentice attached, and remained with his assent until he was of age. During that period, he could not with propriety be said to perform the acts of self removal or self support. During that period, the power of the selectmen of Oxford to remove him was suspended. Independent, therefore, of the proviso in the sixth section, it appears to me, that the pauper did not gain a legal settlement in Oxford.

The proviso at the close of the sixth section is in these words: “ That nothing in this paragraph, or the paragraph next preceding, shall be construed to affect apprentices under age, or servants bought for a time.” This proviso is not limited in its operation to the fifth and sixth sections, but extends equally to the fourth. The fourth section refers, for the manner of removal of the persons therein contemplated, to the provisions in the fifth. The proviso at the close of the sixth refers back to the subject matter of the preceding sections. The fourth and fifth sections, therefore, are so engrafted upon, and incorporated with, each other, that neither is complete, or intelligible, without the other, and may be considered as constituting but one section, without doing violence to the letter of the proviso.

But it is said, that Yeates was not an apprentice; that to constitute an apprenticeship there must be a binding by indenture. So have been the decisions in England. But the decisions there have been founded on a great variety of statute provisions respecting apprentices. The apprentice is to be bound by indenture; the full sum given, or agreed to be given, with an apprentice, is to be written at length; it must bear date on the day it is executed; it must be stamped; duties must be paid, &c. This statutory system of jurisprudence, with the decisions of their courts, may be wise, and well adapted to their circumstances, withou t being obligatory on us. Our statutes have none of these provisions; no such regulations have been adopted here. The words jn proviso in our statute are not bound apprentices, but “ apprentices under age and, independent of English statutes, and the construction of their courts on those statutes, (and we have not adopted their words,) may as well intend those who are placed under the government and direction of another to learn a trade, or the art of husbandry, without a written indenture, as those who are bound by deed; those who are apprentices in fact, as well as those who have been bound by deed or indenture in a particular form.

For these reasons I am of opinion, that in the judgment complained of there is nothing erroneous.

The other judges were of the same opinion.

Judgment affirmed.  