South Hampton v. Hampton Falls

The case finds that Louisa Wood, the pauper, was born in the winter of 1791-2, at Hampton Falls, and was an illegitimate child. She therefore had her settlement in that town; as, prior to our statute of January 1, 1796, illegitimate children had their settlement at the place of their birth.

There are exceptions, however, to this rule. Thus, if a child is born in a gaol, a house of correction, or hospital, or during the execution of an order for removal of the mother from one parish to another, or where the mother has been by collusion or fraud sent into an adjoining parish, in order to fix the settlement of a child there by its birth, in such cases the child has the settlement of its mother; but these exceptions must be shown affirmatively. The place of the birth will otherwise be conclusive evidence of the settlement.

It appears in the present case that the mother of the pauper left Kensington, where she had resided a year or two, and went to reside at Hampton Falls, and that within a short time after her removal there the pauper was born. There is no evidence, however, tending to show that her return to Hampton Falls was procured by any fraud or collusion, in order to impose the burthen of the settlement of her child on that town. Her return there under such circumstances might perhaps have been naturally expected, as it was her native town; at least, no fraudulent design to change the settlement of the child can be presumed from the mere fact of removal.

But it is said that Louisa Wood, the pauper, subsequently acquired a new settlement in Kensington, by her mother taking her with her to Kensington soon after the birth of said Louisa, and residing there with her for some years ; and this depends upon the question whether a child under the age of seven years could, as the law then was, acquire a new settlement in its own right. The pauper was six years of age when the statute of 1796 was passed. It is clear that she has acquired no settlement since the passage of that act. *139Did she acquire a settlement in her own right prior to the passing of that act ? It is contended that she did.

It is said, in Gilberts Evidence 1050, “that the earliest period in which a child can acquire a settlement in its own right, is at the age of seven years and forty days.” This time is specified for the reason that a child is considered as capable of commencing an apprenticeship at seven years of age, and that forty days residence after that time under indentures will give it a settlement.

But it is urged that the English common law has been altered by our statute of 5 George I., by which a residence of any person for three months in any town gives a settlement to such person unless he has been duly warned out; and that it has been also altered by act of 2 George III., by which the time for gaining a settlement was extended to one year, leaving the other provisions of the act of 5 George I. in force. The proviso to these acts is said to sustain this position, for the reason that the exception is therein made “that persons who shall come or be sent into an adjoining town for nursing or education shall not under such circumstances gain a settlement” ; and it is contended that the first exception named in the proviso applies only to infant children, within the age of two or three years, and that those over that age may legally acquire a settlement under the statute.

This might perhaps be regarded as the intention of the provincial legislature, had not the words in the proviso acquired a previous technical and established meaning under the provisions of the common law.

The English authorities give the custody of a child to the mother for nurture for seven years, and expressly provide that during such time the settlement shall not be changed.

In 6 Bac. Ab. 318, it is said that the father has no power over an illegitimate child, nor any right to the custody of it; for till seven years of age the child shall stay with the mother for nurture. And in Simpson & als. vs. Johnson, 1 Doug. 7, it is decided that “where an illegitimate child, having adif-*140ferent settlement from the mother, lives with her for nurture,” that is, as I understand it, during the term of seven years, “ the parish where the child’s settlement is, must maintain it.”

The case of Cumner vs. Milton, 2 Salk. 528, is similar. It is there said that a child under the age of seven years is accounted a nurse child ; and “ if a child be put out to nurse, or for education, though it be above seven years old it, gains no settlement thereby.”

The proviso, therefore, seems designed to sustain the provisions of the common law, by the adoption of language to which an established meaning had been applied, rather than as manifesting an intention to overrule and change it. We regard Louisa Wood, then, as incapable of gaining a new settlement while under the age of seven years, and that she therefore has her settlement at Hampton Falls, the place of her birth.

But it is said she was not a pauper, and the case finds that the necessity for relief to her was caused by the sickness of her husband. It is in evidence that she attended him as a nurse until his death; and, being unable by her sole efforts to sustain and take care of herself and husband during his sickness, they both became paupers. If there is any more unexceptionable or meritorious cause of pauperism than this, it is unknown to us. The wife necessarily became a pauper, unless it became her duty to desert her husband on his death bed; an act which we should not require of her, even though it should expose the defendant town to the necessity of her maintenance while in the discharge of such a duty.

It is farther said, that the husband had no settlement at Hampton Falls, but was a county pauper, and that Hampton Falls is not liable for his maintenance. The provision of the statute in such case is, that the husband shall be supported in the same town where the wife has her settlement, though at the charge of the county. 1 Laws N. H. 300. Hampton Falls was bound, therefore, to maintain the hus*141band ; but as his illness occurred in another town, relief was necessarily and properly furnished there in the first instance. On notice, the overseers of Hampton Falls were bound to remove and take care of him, or pay such necessary expenses as should be incurred in his support; and for these expenses they had an ultimate claim on the county. But as South Hampton has applied to the county, and been paid for the expenditures incurred in support of the husband, such payment is a bar to any claim against the defendant for this portion of the account in suit. For the remainder of their claim the plaintiffs are entitled to recover. There will, therefore, be judgment for this amount on the verdict for the plaintiff.