The opinion of the Court was pronounced by
Baylies, J.
The pauper’s father had a legal settlement in Lunenburgh, where he resided with his family fourteen or fifteen years, and then died.
The pauper’s mother, in 1814 and ’15, after the death of her husband, and during her widowhood, gained a legal settlement in Newbury, by one year’s residence in that town, without being warned out, according to the act of November 6th, 1801.
The pauper, while his mother was gaining her legal settlement in Newbury, resided in the family of his uncle, at Lunenburgh, and was 16 or 17 years of age.
It does not appear from the case, that the pauper, after the death of his father, had any other guardian than his mother, who was his natural guardian.
[488]*488We are now called upon to decide where the pauper had his legal settlement. — Was it at Lunenburgh, where his father had his last legal settlement; or was it at Newburys w^ere his mother gained her’s ?
Neither the act of 1797, nor the act of 1.801, respecting legal settlements, says one word about a legitimate child deriving a settlememt from its father, or mother, or from both of them, in this State. But the act of 1797 did say, that “ every bastard child shall be deemed and adjudged to be settled in the town or place of the last legal settlement of his or her mother.”
The act of 18Í7 says, “legitimate children shall have the settlement of their parents.”
But it is not to be inferred from this, that a legitimate child, before 1817, could not, in this State, derive a settlement from its father or mother, according to the principles of the common law.
I entertain no doubt on this subject. Every legitimate child born after 1797, and before 1817, who was not twenty-one years of age, and was not emancipated, and whose parents had a legal settlement in this State, under the act of 1797, or the act of 1801, did derive a settlement from his parents, according to the common law; that is, from his father; or, if he be dead, then from his mother — she having acquired a new settlement by residence ; and not by marriage.
cf A man settled in St. Katharine’s, married, and had six children born there, and died; after his death, the widow went into the parish of St. George with her six children, and rented a house at £12 a year, and lived in it with her children four months. The single question was, whether the children should be settled where their father was last settled, or have a settlement with the mother in the parish of St. George. And the whole Court were of opinion that the six children were settled in the parish of St. George, where the mother’s last settlement was; and by Parker, C. J. There is no distinction between the settlement of the children with their father or mother; for they are as much her’s as the father’s, and nature obliges her as much as the father to to provide for them — so does the law; and every argument that holds for their settlement with the fa[489]*489ther, holds as to their settlement with the mother. The reason why children shall not gain a settlement where the widow gains a settlement only by intermarriage is, because it is not then the mother’s family, but her husband’s; and she cannot give the children any sustenance without the husband’s leave ; but, in this case, since she is equally punishable with her husband for deserting her children, and therefore could not leave them behind her, they must gain a settlement with her.”—St. George vs. St. Katharine, 14 Petersd. 438, No. 5.
What is said above, is recognized as law, in the case between the parishes of Paulsbury and Woodon, 2 Strange, 746; though in this case, the Court said, “if it had been res integra, they should have doubted whether a settlement, gained under the head of the family, could be divested by a derivative one from the inferior.”
But in the case of Dedham vs. Natick, 16 Mass. Rep. 135, Wild J. says, “Notwithstanding the doubt expressed by the Court, in the case last referred to, (between Paulsbury and Woodon J I think the English decisions are 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.”
In the case between Bozrah and Stonington, 4 Con. Rep. 373, Hosmer, Ch. J. says, “The settlement of the pauper, during his minority, and until he has become emancipated, equally follows that of the father, and that of the mother, acquired in her own right. If of sufficient ability, the obligation of a mother to provide for her children is the same as that of the father; and hence, on the same principles, a settlement is indifferently derived from either.”
We see by the authorities quoted and referred to, that a minor may derive a settlement from the last settlement of [490]*490his father; or if his father be dead, and his mother, without marriage, acquires a new settlement, the minor may derive his settlement from her’s. But if the minor be emancipated, he cannot derive a settlement from a settlement of his father or mother, acquired after his emancipation. This 1 . ^ leads us to inquire. What is emancipation ?
A child is not emancipated by separation from his parent, and therefore follows the parent’s settlement, as part of his family, until it — 1, is of age — 2, has married — -3, has gained a settlement for himself — 4, or has contracted a relation inconsistent with the relation of parent and child ; and by which, therefore, the parent loses all authority over him. — Rex vs. The Inhabitants of Edgworth, 3 T, R. 353.— Rex vs. Inhabitants of Wetton cum Twambrooks, Id. 355(See 14 Petersdorff, 441, n.)
A boy was hired by the week, and served as a weekly servant for two years, after which he obtained his own living by mole-catching, and occasionally visited, but never resided with his father’s family; nor did his father exercise any control over him. He was held not to be emancipated, but to follow his father’s settlement, acquired during his minority. — Rex vs. Wilmington, 5 B. & A. 523.
A daughter was separated from her father at the age of four years; she lived with, and was maintained by her grandfather, and entirely supported by him until his death, when she was seventeen. The grandfather devised the residue of his estate in trust, to pay the interest to his wife for life, who was thereout to maintain and educate this girl; and after the wife’s decease, if during the girl’s minority, the interest was to be applied to maintain and educate her; and upon her attaining twenty-one, the principal to be paid to her; or, in case of her death, to her issue.
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The opinion of the Court was pronounced by
Baylies, J.
The pauper’s father had a legal settlement in Lunenburgh, where he resided with his family fourteen or fifteen years, and then died.
The pauper’s mother, in 1814 and ’15, after the death of her husband, and during her widowhood, gained a legal settlement in Newbury, by one year’s residence in that town, without being warned out, according to the act of November 6th, 1801.
The pauper, while his mother was gaining her legal settlement in Newbury, resided in the family of his uncle, at Lunenburgh, and was 16 or 17 years of age.
It does not appear from the case, that the pauper, after the death of his father, had any other guardian than his mother, who was his natural guardian.
[488]*488We are now called upon to decide where the pauper had his legal settlement. — Was it at Lunenburgh, where his father had his last legal settlement; or was it at Newburys w^ere his mother gained her’s ?
Neither the act of 1797, nor the act of 1.801, respecting legal settlements, says one word about a legitimate child deriving a settlememt from its father, or mother, or from both of them, in this State. But the act of 1797 did say, that “ every bastard child shall be deemed and adjudged to be settled in the town or place of the last legal settlement of his or her mother.”
The act of 18Í7 says, “legitimate children shall have the settlement of their parents.”
But it is not to be inferred from this, that a legitimate child, before 1817, could not, in this State, derive a settlement from its father or mother, according to the principles of the common law.
I entertain no doubt on this subject. Every legitimate child born after 1797, and before 1817, who was not twenty-one years of age, and was not emancipated, and whose parents had a legal settlement in this State, under the act of 1797, or the act of 1801, did derive a settlement from his parents, according to the common law; that is, from his father; or, if he be dead, then from his mother — she having acquired a new settlement by residence ; and not by marriage.
cf A man settled in St. Katharine’s, married, and had six children born there, and died; after his death, the widow went into the parish of St. George with her six children, and rented a house at £12 a year, and lived in it with her children four months. The single question was, whether the children should be settled where their father was last settled, or have a settlement with the mother in the parish of St. George. And the whole Court were of opinion that the six children were settled in the parish of St. George, where the mother’s last settlement was; and by Parker, C. J. There is no distinction between the settlement of the children with their father or mother; for they are as much her’s as the father’s, and nature obliges her as much as the father to to provide for them — so does the law; and every argument that holds for their settlement with the fa[489]*489ther, holds as to their settlement with the mother. The reason why children shall not gain a settlement where the widow gains a settlement only by intermarriage is, because it is not then the mother’s family, but her husband’s; and she cannot give the children any sustenance without the husband’s leave ; but, in this case, since she is equally punishable with her husband for deserting her children, and therefore could not leave them behind her, they must gain a settlement with her.”—St. George vs. St. Katharine, 14 Petersd. 438, No. 5.
What is said above, is recognized as law, in the case between the parishes of Paulsbury and Woodon, 2 Strange, 746; though in this case, the Court said, “if it had been res integra, they should have doubted whether a settlement, gained under the head of the family, could be divested by a derivative one from the inferior.”
But in the case of Dedham vs. Natick, 16 Mass. Rep. 135, Wild J. says, “Notwithstanding the doubt expressed by the Court, in the case last referred to, (between Paulsbury and Woodon J I think the English decisions are 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.”
In the case between Bozrah and Stonington, 4 Con. Rep. 373, Hosmer, Ch. J. says, “The settlement of the pauper, during his minority, and until he has become emancipated, equally follows that of the father, and that of the mother, acquired in her own right. If of sufficient ability, the obligation of a mother to provide for her children is the same as that of the father; and hence, on the same principles, a settlement is indifferently derived from either.”
We see by the authorities quoted and referred to, that a minor may derive a settlement from the last settlement of [490]*490his father; or if his father be dead, and his mother, without marriage, acquires a new settlement, the minor may derive his settlement from her’s. But if the minor be emancipated, he cannot derive a settlement from a settlement of his father or mother, acquired after his emancipation. This 1 . ^ leads us to inquire. What is emancipation ?
A child is not emancipated by separation from his parent, and therefore follows the parent’s settlement, as part of his family, until it — 1, is of age — 2, has married — -3, has gained a settlement for himself — 4, or has contracted a relation inconsistent with the relation of parent and child ; and by which, therefore, the parent loses all authority over him. — Rex vs. The Inhabitants of Edgworth, 3 T, R. 353.— Rex vs. Inhabitants of Wetton cum Twambrooks, Id. 355(See 14 Petersdorff, 441, n.)
A boy was hired by the week, and served as a weekly servant for two years, after which he obtained his own living by mole-catching, and occasionally visited, but never resided with his father’s family; nor did his father exercise any control over him. He was held not to be emancipated, but to follow his father’s settlement, acquired during his minority. — Rex vs. Wilmington, 5 B. & A. 523.
A daughter was separated from her father at the age of four years; she lived with, and was maintained by her grandfather, and entirely supported by him until his death, when she was seventeen. The grandfather devised the residue of his estate in trust, to pay the interest to his wife for life, who was thereout to maintain and educate this girl; and after the wife’s decease, if during the girl’s minority, the interest was to be applied to maintain and educate her; and upon her attaining twenty-one, the principal to be paid to her; or, in case of her death, to her issue. The Court held her not to be emancipated during her minority by these circumstances; for this separate provision could not deprive the parent of the right to the care and custody of his child, nor could it relieve him from the duty of maintaining her; and there can be no doubt, that while under twenty-one, she would follow her father’s settlement.—Rex vs. Uckfield, 5 M. &. S. 214.—(See 14 Petersd. 318.)
In the above case, 4 Con. Rep. 373, Hosmer Ch. J. says, [491]*491t{ Whether the pauper was actually residing in the family of the mother, is no material question; but the only inquiry is, was he emancipated ? If having attained the age of' twenty-one years, he has left his parents’ house, or has become married, or has gained a settlement in his own right, or has contracted a relation inconsistent with the idea of a subordinate situation in his parents’ family, his emancipation is complete, and he has secured the tie, which might confer on’Jhim a settlement by derivation.”
The pauper in this case was only 16 or 17 years of age, when his mother gained her new settlement in Newbury; and he was not married till a number of years afterwards. And before his mother’s new settlement, he had gained no settlement for himself, nor contracted any relation inconsistent with the relation of parent and child, by which hi's mother lost her parental control over him.
This being true, it cannot be said he was emancipated, and could not derive a settlement from the new settlement of his mother. His being married a number of years af-terwards, could not have a retroactive operation, and deprive him of his newly acquired settlement. His living with Iris uncle, while his mother was gaining her new settlement, and several years afterwards, is no evidence to show that he was emancipated. It is not necessary to decide, what would be the effect, if the pauper was under guardianship, when his mother was gaining her new settlement ; for the case does not show that there was any guardian appointed.
On.the whole, I am satisfied, that the pauper, mentioned in this case, was never emancipated, before his mother acquired her new settlement in Newbury, by residing there one year without being warned out of town; and that he derived a settlement from that new settlement of his mother in said Newbury in the year 1815, which appears to be his last legal settlement in this State, to which he ought to have been removed. The said order removing him from Bradford to Lunenburgh is erroneous, and must be quashed.