Inhabitants of Newtown v. Inhabitants of Stratford , 3 Conn. 600 ( 1821 )

Hosmer, Ch. J.

The question in this case, is, whether the pauper has his settlement in Stratford. On the part of New-town, it is insisted, that he was settled in Stratford, by birth ; while Stratford contends, that he has a settlement with his mother in Newtown, by parentage.

The statute makes provision only in relation to a settlement, resulting from property, the act of the town, or the act of the pauper. Hence, for the determination of the question before us, recurrence must be had to the common law.

The first mode of acquiring a settlement, is, by birth / for, wherever a child is first known to be, that is always, prima fa-cie, the place of his settlement, until some other can be shewn. 1 Bla. Comm. 362. 3 Burn's Just. 312.

As to legitimate children, although the place of their birth be, prima facie, their settlement; yet it is not conclusively so: for there are settlements by parentage, being the settlement of one’s father or mother ; the place of birth only being the place of settlement, when that of a person’s father or mother is unknown. 1 Bla. Comm. 363. Foley's Poor Laws 269. 3 Burn’s Just. 313.

The first enquiry is, for the place of the fa<her’s settlement, which, by ope ration of law, is the settlement of the child ; (3 Bunds Just. 3 4.) but if the father have no settlement, then that of the mother is communicated ; (3 Burn’s Just. 321.) and this is a rule of law undisputed, and established, by repeated adjudications.

This case turns entirely upon the legal effect of the mother’s marriage ; which, the plaintiffs insist, so suspended th operation of her settlement in Newtown, as to prevent the transmission of it to her son. Hence, it becomes necessary to enquire, what the legal operation of marriage, is, on the settlement of & feme-covert.

In Rex v. Inhabitants of Norton, 1 Burr. Sett. Ca. 122. it was adjudged, that the settlement of a married woman is suspended, during coverture, though it does not absolutely cease ; an(^ 0f consequence, that she is not removable to her former settlement, during the intermarriage. The reason assigned, is, “ because the contrary determination would give the justices a power of divorce.” The contrary of this has been established, by a current of determinations, five of which existed at the time of the adjudication in Rex v. Norton, but were not adverted to. Regina v. Willsborough Green, Uphottery v. Dunkswell, St. Giles v. St. Margaret's, Rex v. Chidingstone, and Hanway v. Marston, cited 1 Burr. Sett. Ca. 371, 2. See also Foley’s Poor Laws 251, 2., 3 Burn’s Just. 321, 2.

Since the determination of the case of Rex v. Norton, that of Rex v. St. Botolph’s, 1 Burr. Sett. Ca. 367. 373. was decided, in which this principle is stated ; “ that the mother’s maiden settlement remains, having never been determined, but only, as it were, suspended, during the time that she continued under the power and protection of the husband, and was maintained and supported by him.” This I am of opinion is the correct principle, and is recognized in the Commentaries of Sir William Blackstone. “ A woman” says that learned and elegant commentator, “ marrying a man, that is settled in another parish, changes her own settlement; the law not permitting the separation of husband and wife. But if the man has no settlement, her’s is suspended during his life, if he remains in England, and is able to maintain her; but, in his absence, or after his death, or during, perhaps, his inability, she may be removed to her old settlement.” Vol. 1. p. 363. The term “ suspension” is very inadequate to convey the idea of Sir William Blackstone ; as a settlement always exists, until it is superseded by another. It was truly said, in Rex v. St. Botolph’s, 1 Burr. Sett. Ca. 370. that the former settlement of a married woman “ could not cease, but would continue during life, or till a new one should be gained : there is no case where a settlement ceases, by any other method.” Until this new acquisition, there is neither a temporary cessation or interruption of the right, nor even of the enjoyment of it, ifthe necessities of the feme-covert imperiously require it. The separation of husband and wife, on this principle, will always be voluntary, or arising from the coercion of his utter inability to support her.

The settlement of Hersey Sherman was neither extinguished, nor suspended, by her marriage ; but communicated itself to her son, at the time of his birth ; and, as no subsequent settlement has been acquired, by either parent, or by the son, he is an inhabitant of Newtown. The point was decided in Hebron v. Colchester, 5 Day 169.

Judgment must, accordingly, be entered for the defendants.

The other Judges were of the same opinion.

Judgment to be entered for the defendants.