Parris J.
delivered the opinion of the Court.
As the pauper gained a derivative settlement in Freeport from his father, that settlement continues under the first section of the general pauper law of this State, ch. 122, providing that all settlements already gained by force of the laws of Massachusetts previous to the separation, or otherwise, shall remain until lost by gaining others in some of the ways pointed out in the general law aforesaid.
It is incumbent on the town of Freeport, in sustaining their defence, to show that he has thus lost his settlement, in that town, which he derived from his father.
It is contended in defence, that the pauper gained a settlement in New-Gloucester, by serving an apprenticeship and setting up his trade therein. The statute provides that “ any mi- [359]*359“ nor who shall serve an apprenticeship to any lawful trade, for “ the space of four years in any town, and actually set up the “ same therein within one year after the expiration of said term, “ being then twenty-one years old, shall thereby gain a settle- “ ment in such town.”
The case finds that the pauper was bound as an apprentice, in New-Gloucester, to learn the trade of a farmer. We much doubt whether the business of farming comes under the appellation of a trade, within the true meaning of the statute.
But if farming could be considered as a trade, so that an apprentice to a farmer, to learn the business of farming, and setting up the trade and continuing it, as the statute provides, for one year, could gain a settlement, still the defence in this case is not sustained.
The pauper was to serve his master under the indentures until the 9th of October, 1825, when he arrived at twenty-one years of age. He left, by consent of his master, in November, 1823, and although he was occasionally in New-Gloucester, in the year 1824, yet it is expressly stated that he did not work there, after the summer of that, year, until the autumn of 1828, when he returned with a family. The statute requires that he shall set up the trade within one year after the expiration of the term, being then twenty-one years old. This the pauper did not do. If the term is to be considered as ending when he left his master in November, 1823, no setting up of a trade could avail then, for he was still a minor but about nineteen years of age. If it be contended that the term did not expire until he became of age, then he did not set up his trade in the town within one year, for he became of age in October, 1825, but was not employed in any business in New-Gloucester, from the summer of 1824, until the autumn of 1828.
This branch of the defence, therefore, would wholly fail, even if Welch had been an apprentice to a trade within the meaning of the statute.
It is further contended, that the pauper lost his settlement in Freeport, by being in New-Gloucester, and residing and having his home there on the 21st of March, 1821, the time of the passage of our general pauper law. The following is the clause [360]*360of the statute relied upon. “ Any person resident in any town “ at the date of the passage of this Act, who has not within “ one year previous to that date received support or supplies “ from some town as a pauper, shall be deemed to have a set- “ tlement in the town where he then dwells and has his home.”
That this branch of the statute was intended to embrace minors, under certain circumstances, as well as persons of full age, is manifest from the phraseology of the paragraph immediately preceding it, which provides that a residence of five years shall give a settlement, provided the person thus residing be of the age of twenty-one years. The change of language indicates the intention that the one case shall be limited to persons of full age, the other not, — and such is the construction which this Court has given it in Lubec v. Eastport, 3 Greenl. 220. This Court has decided also, that it does not, in all cases require the exercise of volition to gain a settlement under this provision of the statute.
In the case just cited, the Court say, “ The act of 1821 “ operated on thousands, to fix their settlement in towns in “ which they respectively dwelt and had their home on the day “ of its passage, without any volitjon on their part, and even “ without their knowledge. The want of understanding and “ power of volition in the pauper would not seem to furnish “ any objection to his capacity to gain a settlement in a town, “ by his dwelling and having his home there when the act was “passed.” — In Sumner v. Sebec, ibid. 222, the point upon which the decision turned was, whether the pauper 'was emancipated at the passage of the act. She resided in Sumner, her parents in Sebee. It was contended-that she, although a minor, gained a settlement in Sumner, because her parents had emancipated her. The Court, however, held that the facts proved did not amount to emancipation, and that her settlement followed her father’s. — It is evident from the case, that if emancipation had been proved, the decision would have been that she gained a settlement in her own right, in consequence of dwelling and having her home in Sumner.
In the case before us there was a clear emancipation. Both parents had been dead for more than ten years, and the pauper [361]*361had resided in New-Gloucester for nearly the whole period ; had not resided, neither does it appear that he had even been within the limits of Freeport for upwards of nine years.
In the language of the statute, he resided in New-Gloucester, ho dwelt there, and Fogg, his master, with whom he lived, says his home was there at his, Fogg\s house, from May, 1811, to November, 1823. If his home was there, the statute fixes his settlement there, and he consequently thereby lost the settlement which he derived from his father in Freeport.
In Sidney v. Winthrop, 5 Greenl. 123, the Court decided that the pauper had her home in Sidney, although she was non compos and was supported there by her grandfather whose home was in Winthrop.
In Holyoke v. Haskins, 5 Pick. 20, the Court decided that a person non compos, whose derivative settlement was in Boston, and who owned real estate there, changed her domicil by being removed to Natick, although she was there supported by her guardian, an inhabitant of Boston; — that the domicil of a person non compos mentis, under guardianship, may be changed by the direction or with the consent of the guardian. The doctrine, that a guardian may change the domicil of his ward, is also recognized by Story in his late Treatise on the Conflict of Laws.
These cases shew that it does not require volition as indispensably necessary to establish a domicil or home, and that it may be done for those who have not the power of volition, by their friends or guardians.
It has been urged that Welch is to be considered in the light of a pauper during his residence in New-Gloucester, and the case of Southbridge v. Charlton, 15 Mass.
Free access — add to your briefcase to read the full text and ask questions with AI
Parris J.
delivered the opinion of the Court.
As the pauper gained a derivative settlement in Freeport from his father, that settlement continues under the first section of the general pauper law of this State, ch. 122, providing that all settlements already gained by force of the laws of Massachusetts previous to the separation, or otherwise, shall remain until lost by gaining others in some of the ways pointed out in the general law aforesaid.
It is incumbent on the town of Freeport, in sustaining their defence, to show that he has thus lost his settlement, in that town, which he derived from his father.
It is contended in defence, that the pauper gained a settlement in New-Gloucester, by serving an apprenticeship and setting up his trade therein. The statute provides that “ any mi- [359]*359“ nor who shall serve an apprenticeship to any lawful trade, for “ the space of four years in any town, and actually set up the “ same therein within one year after the expiration of said term, “ being then twenty-one years old, shall thereby gain a settle- “ ment in such town.”
The case finds that the pauper was bound as an apprentice, in New-Gloucester, to learn the trade of a farmer. We much doubt whether the business of farming comes under the appellation of a trade, within the true meaning of the statute.
But if farming could be considered as a trade, so that an apprentice to a farmer, to learn the business of farming, and setting up the trade and continuing it, as the statute provides, for one year, could gain a settlement, still the defence in this case is not sustained.
The pauper was to serve his master under the indentures until the 9th of October, 1825, when he arrived at twenty-one years of age. He left, by consent of his master, in November, 1823, and although he was occasionally in New-Gloucester, in the year 1824, yet it is expressly stated that he did not work there, after the summer of that, year, until the autumn of 1828, when he returned with a family. The statute requires that he shall set up the trade within one year after the expiration of the term, being then twenty-one years old. This the pauper did not do. If the term is to be considered as ending when he left his master in November, 1823, no setting up of a trade could avail then, for he was still a minor but about nineteen years of age. If it be contended that the term did not expire until he became of age, then he did not set up his trade in the town within one year, for he became of age in October, 1825, but was not employed in any business in New-Gloucester, from the summer of 1824, until the autumn of 1828.
This branch of the defence, therefore, would wholly fail, even if Welch had been an apprentice to a trade within the meaning of the statute.
It is further contended, that the pauper lost his settlement in Freeport, by being in New-Gloucester, and residing and having his home there on the 21st of March, 1821, the time of the passage of our general pauper law. The following is the clause [360]*360of the statute relied upon. “ Any person resident in any town “ at the date of the passage of this Act, who has not within “ one year previous to that date received support or supplies “ from some town as a pauper, shall be deemed to have a set- “ tlement in the town where he then dwells and has his home.”
That this branch of the statute was intended to embrace minors, under certain circumstances, as well as persons of full age, is manifest from the phraseology of the paragraph immediately preceding it, which provides that a residence of five years shall give a settlement, provided the person thus residing be of the age of twenty-one years. The change of language indicates the intention that the one case shall be limited to persons of full age, the other not, — and such is the construction which this Court has given it in Lubec v. Eastport, 3 Greenl. 220. This Court has decided also, that it does not, in all cases require the exercise of volition to gain a settlement under this provision of the statute.
In the case just cited, the Court say, “ The act of 1821 “ operated on thousands, to fix their settlement in towns in “ which they respectively dwelt and had their home on the day “ of its passage, without any volitjon on their part, and even “ without their knowledge. The want of understanding and “ power of volition in the pauper would not seem to furnish “ any objection to his capacity to gain a settlement in a town, “ by his dwelling and having his home there when the act was “passed.” — In Sumner v. Sebec, ibid. 222, the point upon which the decision turned was, whether the pauper 'was emancipated at the passage of the act. She resided in Sumner, her parents in Sebee. It was contended-that she, although a minor, gained a settlement in Sumner, because her parents had emancipated her. The Court, however, held that the facts proved did not amount to emancipation, and that her settlement followed her father’s. — It is evident from the case, that if emancipation had been proved, the decision would have been that she gained a settlement in her own right, in consequence of dwelling and having her home in Sumner.
In the case before us there was a clear emancipation. Both parents had been dead for more than ten years, and the pauper [361]*361had resided in New-Gloucester for nearly the whole period ; had not resided, neither does it appear that he had even been within the limits of Freeport for upwards of nine years.
In the language of the statute, he resided in New-Gloucester, ho dwelt there, and Fogg, his master, with whom he lived, says his home was there at his, Fogg\s house, from May, 1811, to November, 1823. If his home was there, the statute fixes his settlement there, and he consequently thereby lost the settlement which he derived from his father in Freeport.
In Sidney v. Winthrop, 5 Greenl. 123, the Court decided that the pauper had her home in Sidney, although she was non compos and was supported there by her grandfather whose home was in Winthrop.
In Holyoke v. Haskins, 5 Pick. 20, the Court decided that a person non compos, whose derivative settlement was in Boston, and who owned real estate there, changed her domicil by being removed to Natick, although she was there supported by her guardian, an inhabitant of Boston; — that the domicil of a person non compos mentis, under guardianship, may be changed by the direction or with the consent of the guardian. The doctrine, that a guardian may change the domicil of his ward, is also recognized by Story in his late Treatise on the Conflict of Laws.
These cases shew that it does not require volition as indispensably necessary to establish a domicil or home, and that it may be done for those who have not the power of volition, by their friends or guardians.
It has been urged that Welch is to be considered in the light of a pauper during his residence in New-Gloucester, and the case of Southbridge v. Charlton, 15 Mass. 248, has been adduced as an authority, that where a pauper is supported in another town, different from that in which he has a settlement, it will not change his settlement.
It would be most unreasonable if it did. That case arose upon a division of the town of Charlton, and the pauper had a derivative settlement in that town from an ancestor whose settlement was acquired by owning real estate in the old town.
The Court decided that, although the pauper had been sup<[362]*362ported by Charlton within the territory that constituted the new town, yet inasmuch as he derived his settlement from those who belonged to the old town, he should be chargeable there also.
If Welch was chargeable to Freeport when the overseers bound him to Fogg, by that act the town was relieved, so far as Fogg was able to relieve it, from all accountability concerning the apprentice, and the overseers were divested of all authority over him. Fogg was entitled to his labour and his earnings, was answerable for his support, his instruction and his acts, so far as a master is answerable for the acts of his servant.
Welch, before he left his master, was liable to taxation in New-Gloucester; tobe enrolled in the militia there, was entitled to receive instruction in the public schools there, and without doubt was included in the number on which was based the representation of the town in the legislature.
We do not consider him in the light of a pauper, after the binding out, but rather like an apprentice or servant bound by a guardian ; and that the overseers are, ex officio, by the sixth section of the act, constituted the guardian for the purpose of binding out. They are authorized to bind out the children, not only of those parents who have actually become chargeable, but children whose parents shall be thought by the overseers to be unable to maintain themselves, although not chargeable. It was under this provision that Welch was bound. His parents, being dead, were unable to support and maintain him, and the statute vested in the overseers the power of binding him out. A very different power from that which is given to them by the 8th section, granted for different purposes and to be exercised in a very different manner. That applies to persons of full age, idlers and such as are liable to be sent to the house of correction, and it was in relation to this class only, that the observations of the Justices of this Cour.t applied in their answer to the Governor and Council of June 1831. The inquiry was made only concerning such, and the reply is applicable to no others.
At the time of the passage of the act, Welch was seventeen years of age, fully able then and for many years previous, to [363]*363earn bis support. So far from receiving supplies in any way as a pauper, at that time, he was abundantly able to provide for himself; and we think it would be doing violence to the obvious and true meaning of the statute to consider him as having a home in Freeport, or as receiving supplies or support as a pauper from that or any other town on the 21 st of March, 1821.
According to the agreement of the parties, the plaintiffs are to become nonsuit.