Londonderry v. Andover.

family until her father's death in 1826; and then lived with her mother in Andover until 1846; and then moved to Londonderry.

The defendants gave evidence tending to prove that the said Eleazer Hathorn, Jr., did not remove to Reading with his father, but continued to reside in said Jaffrey, until about 1787, when he came to Reading, stayed there several years, then returned to said Jaffrey, and lived there and in other towns in that vicinity, in New Hampshire, until he removed to Springfield, and that he resided in said Jaffrey in 1784, 1785 and 1786.

The evidence on the part of the plaintiffs to prove that Eleazer Hathorn, Jr., resided in Reading, previous to 1787, was contained in depositions of his widow, daughter, and several other persons, who appeared to have had no actual knowledge respecting his residence at so early a period, but deposed to what they had heard him and other members of his father's family say in reference to his and their having formerly lived in Reading:-to so much of the depositions as related to these declarations, the defendants objected, but the objections were overruled, and the depositions read.

There was no dispute but that Eleazer Hathorn, senior, moved to Reading some time in 1781, and evidence was given tending to show that the town of Reading was organized after he went there, but at what time such organization took place did not appear; and evidence was introduced by the plaintiffs, consisting of grand lists, deeds and records, showing, or tending to show that there were listers and a town clerk, and that the town was acting as an organized town as early as 1781.

The jury were instructed that the settlement of the pauper in the defendant town, depended upon their determination of the question, whether her father, E. Hathorn, Jr., obtained one in Reading between the years 1779 and 1787, as the testimony tended to show; if he did obtain such a settlement, the pauper would take it derivatively from him. They were further told, upon this point, that the important inquiry was when Eleazer Hathorn, senior, and his son, Eleazer Hathorn, Jr., went to Reading to reside; that if they should find that Eleazer Hathorn, senior resided and made it his home one full year continuously in Reading, between the years 1779 and 1787, and before the said Eleazer Hathorn, Jr. became of age, then they would find that the senior Hathorn obtained a

Londonderry v. Andover.

settlement there, and the younger Hathorn obtained one derivatively from him. Or, if the jury should find that E. Hathorn, Jr., the pauper's father, resided in Reading after becoming of age, one full year continuously, and made it his home there between the years 1779 and 1787, then said E. Hathorn, Jr. gained a settlement there in his own right; and if he thus gained a settlement in either of these ways, the same would be communicated to and give the pauper a settlement there, by which she would now have a settlement in Andover, and their verdict must be for the plaintiffs.

Upon the subject of the organization of Reading, the jury were told that, from the fact that the several lists of that town put into the case, and sundry deeds showing that there were a town clerk and listers in Reading as early as 1781, and the town appeared from their records to have been officered and conducting affairs as an organized town, the jury might presume the town was duly organized. To this charge, and to the admission of those parts of the depositions which were objected to, the defendants excepted, Verdict for the plaintiffs.

S. Fullam for the defendants.

The sayings of E. Hathorn, Jr., were nothing more or less than hearsay. Such sayings are never received in evidence, except as a part of the res gestae accompanying and explaining acts, from which some inference may be drawn in favor of the issue. 1 Stark. Ev. 41, 44, 47, 49.

The jury were not at liberty to infer an organization of the town from the fact that such town had officers and lists, immediately after its first settlement. It might, perhaps, be inferred from an user for a sufficient length of time.

Lists would afford no evidence of organization. By the act of 1789, people residing in "peculiars," (not within the limits of any town,) were to be taxed for their lands, persons and estates thereupon; State Papers 297. Peculiars were to have officers; State Papers 303.

There was no law prior to 1787 regulating settlements. It has been supposed by some that the acts of 1778, now lost, contained

Londonderry v. Andover.

some provisions on that subject, but the journals of that year show no such thing.

The acts of 1779 were the only laws on the subject before 1787, and these were mere temporary acts, to continue in force but eight months, and made for the temporary relief of the poor, and are entirely silent on the subject of settlements, and the very titles to the acts show that they had no other meaning, said acts being, with their original orthography, punctuation and capitals, as follows:

"An Act for the ordering and disposing of transient Persons.

"That the Select-men of each respective Town in this State, shall be, and are here"by authorized and impowered, to warn any transient person (residing in such "Town, that is not of quiet and peaceable Behaviour, or is in their Opinion, like to "chargeable to such Town) to depart out of such Town, except such person does "obtain a Vote of the Inhabitants of such Town, in legal Town-Meeting, to remain "in such Town; and if any such Person or Persons being so warned, do not leave "such Town within Twenty Days after such warning, then one or more of said "Select-men, may make Application to an Assistant or Justice of the Peace, "who is hereby empowered to issue his Warrant, to the Sheriff or Constable to "take such Person or Persons, and transport him or them to the next Town towards "the Place where such Person was last an Inhabitant, in the same Manner to be "transported to the Place where such Person or Persons were Inhabitants last, or "in the same Way out of this State, if he be not an Inhabitant thereof, and all such "Expence shall be paid by the Person or Persons so warned, if of Ability, but if he "is not of Ability to be paid by such Town,

"Provided always That no Person shall be subject to such Warning after he or she "has lived in such Town one Year.

"That if any transient Person or Persons, shall be taken sick or lame in any Town "in this State, whoever shall keep any such Person or Persons, (if such transient, "sick or lame Person or Persons be not of sufficient Ability,) shall defray such Ex"pence, until complaint thereof be by him made to to the Select-men of such Town "after which such Select-men shall provide for such transient, sick or lame Person "according to law."-ACTS OF 1779, 25.

"An Act for maintaining and supporting the Poor.

"That each Town in this State shall take Care of, support and maintain their own "Poor.

"AND that if any Person or Persons, shall come to live in any Town in this State, "and be there received and entertained by the Space of Twelve Months; and if by "Sickness, Lameness, or the Like, he or they come to want Relief, every such Per"son or Persons, shall be provided for by that Town wherein he or they were so "long entertained at said Town's own proper Cost and Charge, unless such Person or Persons by Law are to be provided for by some particular Person or Persons; or unless such Person or Persons wanting Relief have within the said Twelve "Months, been warned as the Law directs, to depart and leave the Place; And if "such Warning be given, and the same be certified to the next Superior Court, to be held in the same County, the said Court shall and may otherwise order the "defraying of the charge arising about such indigent Person or Persons."-ACTS OF 1779, 97 & 8.

Londonderry v. Andover.

These acts were declared to be temporary, and to remain in force until the rising of the general assembly in October following, (8 months.)

These acts, being temporary, have no effect in fixing a settlement; indeed the word settlement was not used in them, and the spirit and intent of these acts, clearly show that nothing was intended but to make temporary provision for the poor.

No trial was provided for before moving a person, and no appeal was allowed; there was no tribunal to settle the question between the towns, or before whom any question could be settled, nor had the person thus removed any opportunity even to protest against the proceeding, the selectmen ordered him to go, and if he neglected, without notice to him, any magistrate applied to issued a warrant, and ordered his removal, not to the place where he had been entertained "by the space of twelve months," but to the place where he was last an inhabitant.

The acts of the February session, 1779, only continued in force until the next October, while those of the June session of 1779, were continued in force until 1787.

421, 444, 467, 482, 496, 504, 510.

State Papers 388, 391, 397,

There was no law in force in relation to paupers, after E. Hathorn, senior, moved to Reading in 1781, until 1787, and hence the charge was wrong in relation to his residence.

It was error to charge that a derivative settlement could be obtained at all before 1787. There was no statute upon that subject until that time. There certainly is no common law sanctioning it, and the English statutes make no mention of it, at least until since the 14th of Charles II., although the English courts held, that a man's family residing with him, whether of age or not, had his settlement. 12 Richard II., chap. 7, enacted that the poor were to repair, in order to be maintained, to the place where they were born. By 11 Henry VII, chap. 2, they were to repair to the place where they last dwelled, or were best known, or were born. By 19 Henry VII., chap. 12, they were to repair to the place where they were born, or made last their abode by the space of three years. By the act of 1 Edward VI., chap. 3, this was explained to be where they had been most conversant by the space of three years. James I., chap. 7, they were to be sent to the place of their dwel

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Londonderry v. Andover.

ling, if they had any, if not to the place where they last dwelt by the space of one year; if that could not be known, then to the place of their birth. This continued to the 13th and 14th of Charles II, which reduced the term of one year to forty days. 3 Burn's Justice.

While a child was within the years of nurture, (under seven years old,) he could not gain a settlement in his own right, but after that he could gain a settlement in his own right by a residence of forty days, under an indenture. 3 Burn's Justice 586.

It was necessary that the son reside with the father to take the father's settlement. Bugden v. Ampthill, Bur. S. C. 270. 2 Bott. 66. Barton Turse v. Happisburg, Bur. S. C. 49. Halifax v. Warley, 3 Burn's Just. 592. East Woodbury v. West Woodbury, 3 Burn's 589. King v. Sowerby, 2 East 276. King v. Cowhoney

born, 10 East 88.

The ancient rule of law was that birth gave a settlement. Rickmensworth v. St. Giles, 3 Burn's Just. 583. Cripplegate v. St. Saviours, 3 Burn's Just. 584. Rex v. Heaton Norvis, 5 Geo. 1.

But if he had a derivative settlement from the elder E. Hathorn, we insist he could not transmit it to his daughter thirty years after he left this state. A settlement out of the state was regarded by the statutes up to 1801. State Papers 303, 315.

Butler & Knowlton and H. E. Stoughton for the plaintiffs.

One year's residence between 1779 and 1787 was sufficient to give a legal settlement. See Slade's State Papers 378-9, and forward. See also Corinth v. Newbury, 13 Vt. 496.

During this period of time, and up to 1817, the common law relative to derivative settlements was in force. Wells v. Westhaven, 5 Vt. 322. Slade's State Papers 450.

At common law, the settlement of the father is communicated to the minor children born out of the state, (Freetown v. Taunton, 16 Mass. 52,) even though they were children by a second wife whom he married out of the state; Cambridge v. Lexingĵon, 1 Pick. 505. And the original settlement from which a pauper's may be derived, will be communicated to all posterity, unlesss another settlement is gained in some town in the state. Bridgewater v. Bridgewater, 9 Pick. 55. These cases all arose prior to 1767,