
    Johnson v. Huntington.
    1804.
    J.n the Court below,
    Jedediah Johnson, and the rest of the inhabitants of the Town of Canterbury, Plaintiff's ; .Ezra Bishop, and the rest of the inhabitants of the Town of Lisbon, Defendants.
    
    A woman, belonging1 to tills State, married to an inhabitant (if another State, may gaina settlement, if her ■marriage is void.
    A lunatic, needing support, may be removed to the town where she has a settlement, although she has a rever-sionary estate, in fee, in the town where she resides.
    THIS was an action on the case, brought by the Town of Canterbury, against the Town of Lisbon, for removing on or about the 1st of April, 1801, Ruth Barber, a pauper, who then was, and for a long time had been, unable to support herself, into the Town of Canter» bury ; by which they were put to expence, &c. -
    To this action the defendants, byJheir agent, B. Hunting-ten, pleaded the general issue ; and, in January, 1803, a special verdict ivas found, stating the following facts j . — On the 6th of March, 1801, the select men of Lisbon removed into Canterbury Ruth Stevens, alias Ruth Earner, an insane and poor person, unable to support hw -• self, for whose maintenance, Lisbon had expended ¾ 10,
    She was born in Lisbon, and .there lived till she was about .thirty years of age,. On the 12th of July, 1787, she was married/by the Rev. Mr. Lee of Lisbon, to James Barber of Medway, in Massachusetts, and immediately removed, with Barber, into Canterbury, and there lived with him, as his reputed wife, two years, and eight months. They then removed into Plainfield, and there dwelt together, six months ; then returned into Canterbury, and there lived together, till March, 1792 ; then removed into, and remained in Lisbon, one year; then returned to Canterbury, and there lived together, three years ; then removed to Norwich, and continued there, about one year; then returned to Lisbon, and continued there, about two years. Then said Ruth went into Canterbury, and soon after, Barber transported their household furniture into Canterbury, where it remained, when she was removed, by the select men of Lisbon.
    On the 11th of March, 1788, the select men of Canterbury caused a warning, directed to James Barber, and widow Mary Stevens, tó be served upon.Barber, directing them, and each cf them, to leave the Town. Barber at the time of his marriage with Ruth, hrd a wife, living in Medway, in Massachusetts, to whom he was lawfully married, in 1762, and who survived until the year 1796. This marriage, however, was wholly unknown both to the plaintiffs, and defendants. Barber and Ruth, during their cohabitation, were reputed to be husband and wife. ■
    In the year 1797, a patrimonial real estate, in fee, in the Town of Canterbury, was distributed to Ruth, cf the Value of 45/. 5s. 11 1-2d, When removed by the select men of Lisbon, she was not possessed of real estate, in Canterbury, of a greater value than 3 60. At the same time, a reversionary interest in one undivided eleventh part of about thirty sve acres of land, in Lisbon, vested in her, subject to the life estate other mother, who is still i’ving; which interest wes worth mere than the sum expended by the Torro of Lisbon, for the support of Risk, r, eviene to their removing her,
    Unon these facts, the Superior Court, adjudged, that Ruth had gained a settlement in the Town cfCantercnry, and thr.tr] e defenderte had a right to remove her.
    
      Bacon, for the plaintiffs in error.
    Two questions arise upon this record:
    First, whether Ruth Barber gained a settlement iri Canterbury ? And
    Secondly, if she did, whether Lisbon had a right to remove her ?
    * 1. It is found, that she was a native of Lisbon. How has she been transferred to Canterbury ? What has Lisbon done, or what has Canterbury omilted to do, to vary their respective rights? The Town of Lisbon have, indeed, married cue of their paupers to an inhabitant of Massachusetts; but, if they are to gain by this, they are to profit by a crime.
    Canterbury has given credit to a marriage, solemnized in Lisbon, under the forms of law. Can Lisbon impeach a marriage, to which the members of that corporation were privy ?
    The select men of Canterbury have sufficient legal1 evJ idence, to give credit to the marriage; for reputation and cohabitation are, to all civil purposes, especially in cases arising between two parishes, conclusive evidence that the parties are husband and wife, 
       The Court had, therefore, sufficient - evidence to pronounce them such.
    Suppose the select men of Canterbury had removed Ruth to Lisbon, and separated her from her husband ; ffor they could not have removed him ;) Barber might ■have brought an action against them, and need not have produced any evidence of marriage,but cohabitation and reputation. We could not have pleaded ne wu/ves decouple in loyal marriage, 
      
       The Town, then, were in this strange dilemma : if they removed her, they were liable to Barber; if they did not, they must support her» She was, then, in such circumstances, that she could not be removed ¡ and could, therefore, gain no settlement, any more than a person confined in gaol...
    But if Canterbury could have contested the validity of the marriage, they were no more bound to do it, than the Town of Hartford would be to examine the validity of an execution, on which a debtor is committed to gaol, lest such debtor might become an inhabitant, if it were illegal.
    A settlement cannot be gained where the residence is clandestine; or where there has been any art, or fraud. The pauper did not reside in Canterbury, in that fair, open manner, necessary to give a residence; but was there underfalse colours, claiming to be the wife of fames Barber. Suppose a pauper should forge a deed of land in Hartford; and, on the credit of that, should live there a year, under the old statute ; would he gain a settlement, by that evidence l
    
    The jury have found the Towns equally ignorant of the fact of the former marriage. One innocent party cannot throw its burthens on another, equally innocent. :
    Under the old law, persons could not gain a settlement, without the consent of the select men, either express of implied,, unless they had real estate. But the select men could not have assented to a thing, of which they had no knowledge. Ruth they knew as a feme covert, but not as a feme sole.
    Although a second marriage, daring the life of a former husband, or wife, is void, as it respects the parties ; yet it may be very different as it respects third persons ; and even a party, if innocent, may acquire some right thereby,  Thus, a woman marrying a second husband, living the first, and the second ignorant thereof'., was treated as the servant of the second.  So a parol Rase is void ; vet it may operate as a licence. So though tire contracts of an infant may be void, yet he can neves-treat the purchaser as a trespasser.
    2. Had Lisbon a right to remove the pauper to Canterbury ? .
    The statute for the admission of inhabitants 
       provides, that when a person becomes unable to support himself and family, and becomes chargeable, he may be removed. Such person must be unable to support himself. By this is doubtless meant, a pecuniary inability, and he must actually become chargeable; for a person may be unable to support himself, and still have relations, whq save the town from charge.
    Here, the jury have found, that Ruth had a mother, possessed of property ; and that she herself had real estate in Canterbury, and Lisbon. Any payment, therefore, by the Town of Lisbon, must have been voluntary ;and a recovery cannot be had for a voluntary payment by parish officers. 
      
    
    
      The statute providing for the support of insane persons, ideots, &c.  makes certain relations liable, when such insane persons, ideots, &c. have no estate. Ruth being within the description of persons pointed out in that statute, the Town was not first liable, but her relations ; and her relations were not liable, while she had estate ; and application should have been made to the County Court, for the disposition of that estate.
    
      Dana, and Dzuight, for the defendants in error.
    The question is, whether a ceremony, declared by a statute absolutely null and void, can have the effect of suspending the power of gaining a settlement? For there is no question that the pauper resided a sufficient lime in Canterbury, under the statute then in force, to gain a settlement.
    That a wife dc facto has certain rights is admitted ; but none of the cases go the length contended for in this.. The case from Powell shews, that equity may, in such case, assist the parties, because the law cannot. In Strutville’s case, 
       the court adopted a fiction, to give the innocent party the benefit of the services of the other. The case from Co. Lilt, only serves to show the distinction between a void marriage, and one voidable. A prior marriage is an objection totally distinct from a c.ase ot precontract. A marriage after a precontract is recognized by the courts of law, till there has been a divorce ; but a marriage, during the life of a former husband or wife, is void, by the common law, as well as by o.ur statute. The case of Allen v. Gray, 
       and that from Burrow, only shew, that this question is not to be collaterally tried, but must be declared by the sentence of a proper tribunal; end that a party to an illegal marriage, shall not be a witness to prove it illegal, to bastar-dise the issue. 
       A marriage, therefore, declared by ■statute,  to be null and void, must be considered, however hard the case may be, as though it did not exist. If a person contracts with another, who appears to be of full age, the contract, if such person is an infant, will be as completely void, as though the other party had been informed of that fact, at the time of the contract. This residénce was not clandestine, because she was publicly in Canterbury ; — and if they did not know of the former marriage, the residence was at their risk.
    Rut it is to be noted, that in the year 1788, the Town of Canterbury wanted the man, but not the woman, to leave the Town, ' ■ ' ■ ■
    The conduct of the Town of Lisbon, it has been inti-tháíed^ amounts'to" giving'a certificate. A certificate is a formal adjudication of a Town against itself. Lisbon could not take the risk of a marriage, merely because it was made in that Town ; and it is not pretended, that Lisbon had any concern in sending the pauper to Gan» tefbufy.
    But the cases of thtKitig- v. Inhabitants of '¡¡¡ubtm-ham, 
      
       and the King v. Inhabitants of Northfield 
      
       decide the principle, contended for by the defendants, ⅛ this case.
    ■ 2. Had, then, the Town of Lisbon a right to remove this pauper ? The plaintiffs, in their declaration, say, that she then was, and long had been, unable to support herself. They cannot, therefore, deny what they have asserted, unless the jury have found something incompatible therewith. Her interest in Lisbon is merely reversionary. The verdict states her inability, and being chargeable. The statute intended, that persons should not be removed, because they were likely to become chargeable ; but if destitute of means, and relations do not provide for them, and expences actually arise to. the town in which they are, then, they may be removed-It would be little to the credit of our law, if the ability of the relations was to be settled by a judicial decision, be-fo;-. their poor kindred could have relief. As it respects the .question between towns, it can make no difference, whether there are relations, or not, for each town must maintain its own poor, whether within the town cr not. The question is now between two towns, where the pauper is settled, and not between the pauper and a town. -
    
      Goddard, in reply.
    Independent of the marriage,-Rath Stevens might have gained a settlement in Canterbury. But acts, perfectly null as between the parties, may, as between other persons, draw' after them important consequences. Thus, a statute 
       declares fraudulent conveyances to be utterly void; but if a person receiving such conveyance, convey bond fide to a third person, the decisions of the Superior Court have been, that such conveyance is good.
    The case in Burrow's Settlement Cases is conclusive; for no intimation is given, that-it was -decided-⅞⅜&⅜ ground, that the man was an incompetent witness. There was,no proof aw.-actual: marriage,but merely that they had cohabited together. This case furnishes evidence, as abundant, surely, as that, of the existence of a marriage.
    The case of the King v. Inhabitants of Lubbenham does not come up to this. The Court títere only determine the extent of a certificate. In the case of the King v. Inhabitants of Northfield, the question as to the marriage is not directly decided.
    3. The defendants have treated Ruth Barber as a pauper, but she is not so treated bv the verdict ; nor have we so treated her, in our declaration; if we have, the verdict finds fácts inconsistent therewith. It finds, that She is a poor, insane person, unable to support herself ; that her real estate in Canterbury, is worth $ GO ; that she is owner of one eleventh part of 35 acres in Lisbon, worth more than $10; and that Lisbon have expended $ 10 for her support. The value of her estate in Canterbury can make no difference as to her gaining a settlement there, unless: it exceed $ 100. Lisbon could no more remove her thither, because she had this estate there; than if she had personal estate there to that amount*
    The declaration and verdict both speak of her as incapable to take care of herself, not for want of property * but for want,of understanding. ;. .......
    The town where such person dwells, must provide for her, and the County Court, in the County where such person dwells, must direct how such cxpenecs are to be reimbursed. As the law now is, if a person has enough to prevent his becoming chargeable, the town, in which he is, cannot remove him, to prevent his gaining a settle* ment. .
    
      But, it is said, that we are estopped, by what is averred ih the declaration, from saying that she is not a pauper. It is admitted, that when a fact is conceded by the pleadings, the jury cannot contradict it; but we state, that she is unable to support herself, not because she is destitute of property, but because she ife non compos men-tis. Besides, the defendants have pleaded the general issue, and, in endeavouring to prove, that she was settled in Canterbury, they have proved, that she had property in Lisbon. Had -t e attempted to prove this, and they objected, the doctrine of estoppel contended for might have applied.
    
      
      
        Bur, Ca. 505.
    
    
      
       Comb. 151, Allen v. Gray.
    
    
      
       2 Pow. Con. 10. Co. Litt. 326.
    
    
      
       2 Stra. 80, Strutville v. -,
    
    
      
       Stat. 240. Par. 4.
    
    
      
       Doug. 9, Simpson v. Johnson.
    
    
      
      
         St at.
      
    
    
      
       2 Stra. 80.
    
    
      
       Comb. 131.
    
    
      
       ⅞. ⅞. 721. D„!>. Edit. 1794.
    
    
      
      
        Stat. 287.
    
    
      
      
         4 Term Rep. 251.
    
    
      
      
        Doug. 659
    
    
      
      
        Star gift
    
   By the Court,

The judgment was affirmed.  