Inhabitants of Pittston v. Inhabitants of Wiscasset , 4 Me. 293 ( 1826 )

Melles C. J.

delivered the opinion of the court at the ensnu ing June term in Somerset, as follows.

James Shea, the pauper, is the son of Joanna Shea the wife of John Shea, an alien and British subject. Joanna was born at WiseasseP, and her fattier John Kincade, at the time of her, birth, had his legal settlement in that town ; and though he afterwards gained another settlement in Whitefield, in virtue of its incorporation as a town in the year 1809, yet his daughter Joanna did not, though then under age, because in 1806 she was lawfully married to the said John Shea. The question, therefore, is whether the pauper has lost his original settlement in Wiscasset, and gain* ed another, either in right of his mother, or in his own right. It is contended that in about fourteen months after their marriage, she was abandoned by her husband who then went to New Brunswick, where he has ever since resided ; but it appears he had no idea of abandoning her, because he several times inquired after her and his son, and was anxious for them to follow him to his new abode, where he preferred to reside ; and that she ivas mice on the point of going to him, but was disappointed. Her marriage with Hutchinson, when known to the husband, of course put an end to his solicitations for her removal to New Brunswick. We do not therefore perceive how the pauper’s mother could gain a settlement in Whitefield in her own right, in virtue of its incorporation, she then being the lawful wife of John Shea ; and she could not gain one under her husband Shea, because he was notan inhabitant of that town on the 31st of March 182L In this respect this differs from the case of Knox v. Waldoborough 3 Greenl. 455; and as the marriage with Hutchinson was unlawful and void, of course she gained no settlement thereby in Whitefield. Thus it seems the pauper never acquired a settlement in any other town than Wiscasset, in right of his mother or of his father. The remaining inquiry is whether he ever gained one in his own right. He is still a minor, and unless he has been emancipated, he could not gain one. Since the year 1817 he has resided in different places by permission or direction of his mother ; she has received a proportion of his wages, and in one or more instances made the contract as to his service. In addition to this it appears that his father has made several exertions to procure the removal of his son to New Brunswick, and urged his removal, assuring him of his aid and assistance, and of his regard and affection, and also informing him that the father’s estate should eventually become his. All these facts shew the existence of paternal claims upon his son, and a right to enforce those claims at pleasure; at any rate, they put a negative upon the idea of emancipation. This is never to be presumed, but must always be proved. As the facts before us do not prove an emancipation, the original settlement of the pauper in Wiscasset remains ; and therefore a default must be entered.