Overseers of the Poor of Canajoharie v. Overseers of the Poor of Johnstown

Majority

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The Overseers of the Poor of Canajoharie against The Overseers of the Poor of Johnstown.

Headnote

By *e^statute ’¡£¿. ¾! ⅛- 78. seej ítes^Si. G53. which has common law! sealed ⅛ th« P!a< settlement of its “ñce*"whether ⅛/mother by rived ’ to her, through him, in consequence of his acquiring a new settlement, she being, at the time of such change of the settlement of her father, in his family and under age.

THIS was a case of an appeal to the Court of Sessions, of Montgomery county, from an Order of Removal of a pauper, made by two justices of the peace of Johnstown. The Court of Sessions quashed the order, on the ground that the pauper was legally settled in the town of Canajoharie. It appeared that the pauper was an illegitimate child, about 14 years old. At the time of its birth, the mother was about 16 years of age, and lived with her father in Johnstown, wbere he had a legal settlement. When the child was a year old, the mother’s father removed, with his family, including the mother and child, to Canajoharie, where he acquired a legal settlement; and the mother and her child continued to live with him. Some time prior to the order of removal, the mother of the pauper married a man who had no legal settlement either in Johnstown or Canajoharie. The pauper had acquired no new settlement in Johnstown.

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Conkling. for the plaintiffs.

If the pauper, in this case, gained a legal settlement at Canajoharie, it must be either under the third section of the act for the relief and settlement *of the poor, (1 -N. i?. L. 280.) or derivatively from its mother. The question is, whether the words of the statute, “ the last legal settlement of his or her mother,” refer to the time of the birth of the pauper, so as to fix its settlement at that period, or whether it follows the settlement of the mother, in all its subsequent mutations. The words do not, ex ri termini, limit the settlement to the time of birth. At common law, the place of settlement of a bastard was the place of its birth ; and the mischief intended to be remedied by our statute was, that by accident, or fraud, a bastard might have its place of settlement distinct from that, of its mother. The object of the statute was not to make the settlement of bastards follow that of the mother through all its changes.

If a widow, having children, marries a man of another parish, they are sent back, if they are above seven years of age, to the settlement of their father. (Salk. 528. 2 Bott. 34. Carth. 449.) In regard to legitimate children, they cannot derive a settlement from the derivative settlement of the mother. They can derive a settlement only from the original legal settlement of the parent. There is nothing in the consanguinity of the mother and her bastard child that can communicate the settlement of the mother to the child. The time of birth fixes the place of the settlement of the child. (Doug. 8, 9. Salk. 427.)

H. Fitch, contra.

The statute, no doubt, meant to prescribe a different rule from that of the common law. in regard to the settlement of bastard children. At common law, there aio two modes of acquiring an original settlement; by birth, and by parentage. The place of settlement of a bastard is that of its birth, until it gains a settlement for itself. (1 BJ. Comm. 363. 459. 1 Ld. Raijra. 567.) Legitimate children follow the settlement of tjieir parents ; and wherever the father is S( tiled, that is the place of settlement of his children. (2 Ld. Batjm. 1332. 1 Str. 580. 8 Mod. 169. 2 Salk. 528. 3 Term Rep. 114. 355. 3 Salk. 259.) The act intended to designate the mother as the parent, whose settlement was to be communicated to the child; and to place bastards, in this respect, on the same ^footing with legitimate children ; and this on principles of policy and humanity. If the doctrine on the other side is the true one, the third section of the act was unnecessary; for, by the common law, the place of birth was the place of settlement. The time for fixing the settlement, is when the question is first raised, and the adjudication must be certain and positive. Now, at the time the order was made, the mother had her settlement at Canajoharie.

The words “ last legal settlement,” imply that the first,

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or primary settlement of the mother, was not intended ; and show, most clearly, that the legislature meant, that the infant should follow the settlement of its mother, wherever it might be, in all its changes, so that the child and its natural parent should not be separated. In Wynkoop v. Over soars of JVtw- York, ( 3 Johns. Rep. 15 .) Kent, Ch. J., says, “as the mother had no legal settlement in the state, the child must be adjudged to be settled where it was born.”

If there be any fraud or collusion, a bastard will not gain a settlement at the place of its birth. (3 Burn’s Justice, Poor.). In Delavcrgen v. Noxen, ( 14 Johns. Rep. 333 .) the observation, as to the settlement of bastards, is incorrect.

That was a question merely as to an order of maintenance, submitted to the court without argument, and was correctly decided: the case did not require, or call for the observations which were evidently made without reference to the act for the settlement of the poor. The mistake, however, could not mislead.

Per Curiam. The town of Canajoharie was the place of the last legal settlement of the pauper’s mother. The pauper was an illegitimate child. At common law, a bastard child was settled where it was born ; but our statute (1 N. R. L. 280. sess. 36. ch. 78. sec. 3.) has altered the common law, and declares, “ that every bastard child shall be deemed and adjudged to be settled in the city or town of the last legal settlement of the mother.” It is, however, urged, that the statute contemplates a settlement acquired by the mother ; and not one that is derivative, or in consequence of the acquisition of a new settlement through the father of #the pauper’s mother, as in this case. We are not at liberty to proceed on such an ingenious distinction: the language of the statute is clear and precise ; that the last legal settlement of the mother, however acquired, is that of her illegitimate child. The very expression, last legal settlement, supposes that the settlement of the mother might be changed.

Order of the Sessions affirmed.