
    The Inhabitants of Springfield versus The Inhabitants of Wilbraham.
    Upon a father’s gaining a new settlement, a child of full age, voluntarily .iving with him, does not gain such new settlement within the statute of 1793, c. 34, § 3, mi. 3.
    This was assumpsit for the charges of maintaining Sarah Colton, whom the plaintiffs alleged to have her legal settlement in Wilbraham. The parties made a statement of facts for the opinion of the Court, in which it was agreed that Stephen Colton, the father of the pauper, and also the pauper, were once settled in Wilbraham, the settlement of the pauper being derived from her father; that, in November, 1787, the said Stephen, with his daughter, who was then near thirty years of age, and living with him, removed to a farm in Monson, of more than three pounds’ annual income, of which he was seised in fee; that he continued to live hereon, and in the occupation of it, for more than two years after the 23d day of June, 1789; that the daughter usually lived with her father as a part of his family, laboring for him without compensation; but that, within the same two years, she, at several times, for the space of two weeks, engaged herself, and worked for other persons, returning at the end of each week to her father’s house, to change her apparel, which was kept in a trunk there.
    [ * 494 ] * It was further agreed that, so far as respects this action, the said Stephen gained a settlement in Monson; that neither he nor the said Sarah have gained any legal settlement, since that time, in any town within this commonwealth; that the plaintiffs had expended the sum demanded in this action, viz., 51 dollars 99 cents, in the necessary support of the pauper; and that neither she, nor any of her kindred within the degrees prescribed by the statute in that oohalf, are able to pay for such support.
    
      If, upon these facts, the Court should be of opinion that the said Sarah was legally settled in the town of Wilbraham, judgment to oe rendered for the plaintiffs for the said sum in damages, with costs; otherwise, the defendants to recover their costs.
    
      Ashmun, of counsel for the defendants,
    being called on by the Court, contended that all legitimate children, by virtue of our statutes of 1789, c. 14, and 1793, c. 34, of whatever age they may be, follow the settlement of their father until they gain one for themselves. There may be necessary exceptions to the rule thus generally laid down, but the coming of age is not one. And, hence, he insisted that the pauper had a settlement in Monson, derived from her father.
    
      Ashmun
    
    cited the cases of Rex vs. Offchurch, 
      
      Rex vs. Witton cum Twambrooks, 
      
      Rex vs. Everton, 
      
      Rex vs. Sowerby, 
       as bearing on the question arising on the facts in this cause; but he observed that he had expected originally to have maintained the defence on other grounds, which had been since found not to be tenable.
    
      
       3 Term Rep. 114.
    
    
      
       Ibid. 355
    
    
      
       1 East. 526.
    
    
      
       2 East. 276.
    
   The cause was continued nisi for advisement, and, at the next March term in Suffolk, the opinion of the Court was delivered by

Parsons, C. J.

[After reciting the facts as before stated.] It is very properly admitted by the parties, that the father gained a settlement in Monson. This point * came before [ * 495 ] the Court in the case of Salem vs. Andover, (ante, vol. iii. 436,) and it was held that the occupation by any citizen of his freehold of the annual income of three pounds, and situate in the town in which the owner resides, for two years after the statute of 1789, c. 14, which was passed June 23, in that year, gains a settlement by such occupation and residence, notwithstanding the subsequent repeal of that statute by the statute of 1793, c. 34.

The defendants have argued that the pauper gained a derivative settlement in Monson, with her father, removing and living with him as part of his family; and also relying on the words of the last statute, providing for the settlement of legitimate children.

If this question is to be decided on the principles of derivative settlements, resulting from the English pauper laws, the defendants must fail; for, during the two years in which the father was gaining his new settlement in Monson, the pauper was not all that time a part of her father’s family. Having a right to leave his family, and to work for herself, she in fact exercised that right, although she afterwards returned to her father’s house. In the case of The King vs. The Inhabitants of Roach, the pauper, then twenty-two years of age, and living with her father, left his house, and lived with another family as a wet nurse, for eight weeks, at one shilling per week, and then returned to her father’s, who, in the mean time, ' had removed to and gained a settlement in another parish. And it was holden that the leaving her father’s house for the purpose of seeking her own livelihood, was an emancipation, and that the time of absence was immaterial.

The words of the statute of 1793, c. 34, are, “Legitimate children shall follow and have the settlement of their father, if he shall have any within this commonwealth, until they gain a settlement of their own.” If these words are taken literally, then a son, of full age, who had left his father, and had become the head and father .of his own family, if he had gained no new settlement, would follow any new settlement acquired by his father, after [ * 496 ] the son had left him. This could * never have been the intention of the legislature. The object of this provision was to regulate the derivative settlement of legitimate children, who, when emancipated, are no longer in a condition to derive a settlement from their father.

Wives and children may have derivative settlements, because the husband and the father have the legal control of their persons, and the right to their services; and the wife cannot be separated from the husband, nor minor children from the father. Upon this same principle, slaves, when slavery was tolerated, had a derivative settlement with their master.

But when the father ceases to have any control over his children, or any right to their service, it is not easy to devise any good reason why they should not be considered as emancipated, and as no longer having a derivative settlement with the father on his acquiring a new settlement. And when the reason ceases, the law founded on that reason also ceases.

In the construction of this clause of the statute, we are all of opinion that, upon the father’s- gaining a new settlement, a child of full age, although voluntarily living with him, does not have the new settlement with his father, but his former settlement remains. Whether the cases of a child being non com/pas, or of a son marrying under age, or enlisting as a soldier, by which, during the enlistment, the father has lost all control over his person, or right to the profits of his services, are or are not exceptions, may be determined when those cases arise. The present is not one of them.

Bliss for the plaintiffs.

We find cases in the English reports, where a child of full age, living with his father, is considered as not emancipated. In those cases, the child may be considered as a servant; and in that country, a settlement may be acquired by service; but by our laws, no settlement can be gained by service. We are therefore satisfied that the settlement of the pauper was in Wilbraham, and that the plaintiffs must have judgment for 51 dollars 99 cents, and costs of suit. 
      
       6 Term Rep 247.
     