Landaff v. Atkinson

8 N.H. 532

• Court: Superior Court of New Hampshire
• Decided: July 15, 1837
• Status: Published

Opinion

Upham, J.,

delivered the opinion of the court.

In this case it is objected, that the evidence was not sufficient to justify rendering a verdict in favor of the plaintiff, for the reason that no evidence was offered that the pauper was the legitimate child of Thomas French, the father. Had this proof been required at the trial, it would have been essential.

The marriage, and that the pauper is the issue of the marriage, must be proved ; but when the actual descent is proved, very slight evidence will be sufficient in the first instance to establish the legitimacy. 17 Vin. Ab. Presumption, a; 14 Pet. Ab. 443, note. As Thomas French was admitted to be the father of the pauper in the case, and no exception was taken on the trial as to the legitimacy of the son, it must be regarded as conceded, until the contrary appears. It is too late now to take the exception.

It is also contended that prior to the act of January 1, 1796, there was no law here relative to derivative settlements, and that the settlements of children gained before that time were obtained solely in their own right.

By the act of 1796, it is provided, “ That legitimate ‘ children shall have the settlement of their father, if he ‘ shall have any such within this state, until they gain a settlement of their own.” Laws N. H. 362, ed. 1815. This act fixes the settlement of children bom both prior and subsequent to the passing of the act, as dependant on their father, unless they had previously gained a settlement of their own. But were it not so, it is believed the doctrine of derivative settlements prevailed here long prior to the act of 1796, as part of the common law, or in accordance to the provisions of English statutes, which had been adopted or practiced upon here, and that this pauper had the settlement of his father, unless other cause to the contrary can he shown.

A farther objection taken is, that, while the father was without the state his residence was suspended, so that during such period he could not communicate a settlement to his children. Were the settlement suspended it would, perhaps, be attended with this effect; but we do not conceive the settlement to be suspended. The individual is placed merely under such circumstances that he and his children born to him without the state cannot enforce a claim for support while absent. The fact of their settlement is in no way altered by their absence, or any consequences arising from it, except the want of means to enforce their claim. The right exists, not as a question of jurisdiction but is a mere fact of descent, and avails to the pauper and his children on their return to the state, precisely as though they had never left it.

This doctrine is sustained by authorities. It has been uniformly held that a settlement once gained is not lost but by gaining a legal settlement in some other town in the state, 4 Mass. 131, Chelsea vs. Malden; and that such settlement is not effected by any residence or actual settlement gained in another state. 11 Mass. 441, Canton vs. Bentley; 2 N. H. R. 131, Hanover vs. Weare.

And the point now in issue was expressly decided, on full consideration, in the case of Townsend vs. Billerica, 10 Mass. 411. It was there held, that where a pauper, having a settlement derived from his father, removed into another state, and had there a son born, who afterwards came within the state to reside, and had children, that these children had a settlement in the state, derived from their great-grandfather. The court remark that, though the father of these children might have gained a settlement by his birth in another state, this would have no effect upon his settlement derived from his father’s legal settlement in. Massachusetts, which continued to him notwithstanding his removal from the state. The doctrine, therefore, that such settlement was suspended, or that the right of settlement under such circumstances was not transmissible, was expressly overruled.

Gases of attainder in England would seem to suspend a right of settlement far more than a removal with us to another state : but it is holden there that though the party attainted, cannot acquire a new settlement himself, he may communicate a settlement to his children bom after the attainder. 6 D. & E. 116, Rex vs. St. Mary’s Cardegan; 15 East. 463, Rex vs. Haddenham.

We are of opinion that the several objections taken must be overruled, and that there must be

Judgment on the verdict for the plaintiff.