
    The Inhabitants of Dedham versus the Inhabitants of Natick.
    • The settlement of a widow, acquired by her after the death of her husband, is communicated to her infant children.
    Assumpsit for expenses incurred by the plaintiffs, in the support of-Edmunds. The action was submitted to the determination of the Court, upon the following case agreed by the parties.
    The pauper mentioned in the plaintiff’s declaration is a legitimate daughter of one Samuel Edmunds, who never had a settlement in Dedham, but had his last legal settlement in Natick, if he could gain a settlement there under the circumstances herein after stated ; if not, then in some other town in the commonwealth.
    The territory, which is now the town of Natick, before the yeai 1745, was not incorporated, nor a part of any incorporated place. In that year an act was passed by the provincial legislature, providing that the said territory should be erected into a precinct or parish by the name of * Natick; the inhabitants to be [ * 136 ] endowed with all the privileges, and subjected to all the duties, which other precincts or parishes were, by the laws of the province, endowed with, or subjected to. The parish assessors were empowered to assess, and the parish constables or collectors, to collect, all such sums, as, at a parish meeting regularly warned for that purpose, should be voted to be raised for laying out and maintaining their highways, for the support of their poor, and for maintaining a school; and the parish committee were to have the same power, with respect to the privileges aforesaid, as the selectmen of towns had by law in their respective towns. The parish were authorized to choose any other officers; for enforcing and improving the said privileges, as towns might lawfully choose for the like purposes; and the parish, and the officers, and inhabitants thereof, were made liable to the same penalties for any defect in their highways, for neglect of their poor, and for not supporting a school, as they would have been, in case they had been made a township.
    After the passing of the foregoing act, the inhabitants of Natick annually elected a parish committee and clerk, a constable or constables, surveyors of the highways, &c., until the year 1762; and it appears from the records of the parish, that the parish committee several times issued orders to the constables of the parish, to warn out persons who were alleged to have recently come into Natick. In 1762, Natick was incorporated into a district, and in 1781, into a town.
    The pauper’s father was born in Needham, removed to Natick before the month of April, 1748, and resided there until his death in 1752, never having been warned to depart therefrom. The pauper was born in Natick in December, 1748. Within a year after her father’s death, her mother removed to the town of Dedham, carrying the pauper with her, where they resided, as inmates in the family of the mother’s father, more than a year without being warned to depart; the mother occasionally going into * other families for a short time in the capacity of a [*137] nurse. Within two or three years after the death of the pauper’s father, her mother married and removed, with the pauper, to the town of Needham, the place of her second husband’s residence, he not having a settlement in Dedham, but in Needham, or in some other town in the commonwealth.
    Notice was duly given to the defendants before the commence ment of this suit, and was seasonably answered by them.
    If, on these facts, the Court should be of opinion that the said 1 San uel Edmunds’s last legal settlement was in Natick, and that the pauper had not gained a settlement in any other place, the defendants were to be defaulted, and judgment rendered for the plaintiffs for an agreed sum ; otherwise the plaintiffs were to become nonsuit The cause was argued at the last October term in this county, by Metcalf, for the plaintiffs, and Richardson, for the defendants
    
      Metcalf contended that Natick,
    
    under the provisions of the act of 1745, was able to confer a settlement on its inhabitants. It appeared that the legislature intended, by that act, to confer all the privileges, and to impose all the duties, by law appertaining to towns. Particularly, the support of their poor was enjoined upon them. In England this is wholly a parish concern; yet extra-parochial places, of which there are many in that country, are obliged by law to provide for their poor . If, then, the father gained a settlement in Natick, the pauper has her settlement there derivatively from him. If the mother afterwards acquired a settlement by residing more than a year in Dedham, without being warned to depart, she could not communicate such settlement to her daughter. None but iller gitimate children derive a settlement from their mother. Further, the mother in this case had no family establishment in Dedham; and for this reason she never gained a settlement here  [*138] * Richardson insisted that the act of 1745 operated only to erect Natick into a parish. It is true the parish was enabled to raise money for the support of their poor. But this related only to those who were already settled there. New settlements could not be acquired, since the parish had no, authority to warn out strangers coming to reside there. The father of the pauper removed thither after the passing of the act.
    The mother acquired a settlement in Dedham, and communicated the same to her daughter . As we had no provincial laws regulating derivative settlements, the English regulations on the subject must govern in cases arising here.
    A legitimate child follows the settlement acquired by her widow mother; except in case of her acquiring one from a second marriage. In such case the reason of the law fails; since the mother, by her marriage, ceases to have the control of her child, is no longer bound to support-it, and is not entitled to its earnings .
    The cause stood over for advisement, and at the last February term here, the opinion of the Court was delivered by
    
      
       8 Mod. 39. —Strange, 512, S. C.
    
    
      
       13 Mass. Rep. 553. —Carth. 449. -2 Salk. 482, 528. —Fort. 445.
    
    
      
       2 L. Raym. 1473. —Fortes. 315. —3 Burns’s Just. 318.—Barton, Turfe vs. Happersburg.
      
    
    
      
       4 Mass. Rep. 496. —12 Mass. Rep. 383. —13 Mass. Rep. 469, 554.
    
   Wilde, J.

There seems to be no doubt that Samuel Edmunds, the pauper’s father, had his last legal settlement in Natick. When that place was incorporated into a parish or precinct, it was competent for the legislature to impose conditions; and it was a reasonable condition to require the parish to support their own poor. They doubtless so considered it; for they accepted the act of incorporation, and probably, as is usual in such cases, it was granted at their request. That they considered themselves liable for the support of their poor, appears from the precautions they took to prevent strangers from gaining settlements by residence ; and the act of incorporation certainly subjected them to this liability, by an express provision.

The pauper, therefore, had a derivative settlement from her other in Natick; and the principal question is, whether, * after the death of her father, she gained a new one in [ * 139 ] some other town, derived from her mother.

It is well known that the colonial and provincial laws, relating to the poor, did not extend to the regulation of derivative settlements. Yet no one ever doubted that derivative settlements might be gained m those days; and many cases, decided in this Court, have turned on settlements thus gained.

The general principle is, that every person, who is by law in capable of gaining a settlement in his own right, shall have the settlement of that person, on whom he depends for support; who at the same time has the control of his person, and the right to his services. On this ground it is, that minor children have the settlement of their fathers, and femes covert, that of their husbands. Upon a similar principle, slaves, when slavery was tolerated, had the settlement of their masters ; and by the same principle we must determine the question, whether minors, after the death of their father, shall follow the settlement of their mother, or retain that de rived from their father.

Whether this question has ever been decided in this state, we have not the means of knowing. But it was settled in England, more than a century since, in the case of The Parish of St. George vs. The Parish of St. Catharine [1 Sess. cases 72, c. 69.]; in which case it was ruled, that the child should follow the settlement of the mother ; and the same principle was afterwards affirmed in the case of The Parish of Paulsbury vs. The Parish of Wooden [2 Strange, 746], It is true the Courts say, in the latter case, that, if the question had been res integra, they should have doubted whether a settlement acquired under the head of the family could be divested by a derivative one from the inferior. They, however, yielded to the authority of former decisions, and the law has ever since been considered well settled in England.

Notwithstanding the doubt expressed by the Court, in the case last referred to, 1 think the English decisions are [ * 140 ] * conformable to the general principle, in respect to derivative settlements. The mother, after the death of the father, remains the head of the family. She has the like control over the minor children, as he had when living. She is bound to support them, if of sufficient ability; and they cannot, by law, be separated from her.

These considerations appear to me sufficient to relieve the English decisions from all doubt, and to show that the law here was the same as it was in England. It did not there depend on the provisions of any act of parliament, but on the principles of the common law, regulating the duties and rights, liabilities and disabilities, of parent and child; which are the same in both countries.

The Court, therefore, are of opinion that the pauper, in the case at bar, gained a derivative settlement from her mother, in the town of Dedham; and as it is agreed that neither of them afterwards gained a settlement in Natick, it will not be necessary to consider the other question which has been argued, whether the pauper followed the settlement of her mother after her second marriage. According to the English authorities she could not; because the wife had only a derivative settlement from her husband, and in law they are considered but as one person ; and as he had no control over the children of his wife, by a former husband, was neither bound to support them, nor entitled to their services, a settlement derived from him cannot, say the English books, be communicated to them. But as to this point, the Court give no opinion .

Plaintiffs nonsuit. 
      
       [See the cases collected —2 Pratt, P. L. 20—26. —Wilson, P. L. 359, 360. —Freetown vs. Taunton, ante, 52. —Plymouth vs. Freetown, 1 Pick. 197. —Scituate vs. Hanover, 7 Pick. 140. —Parsonsfield vs. Kennebunk-port, 4 Greenl. 51. —Ed.]
     