Town of Plymouth v. Town of Windsor

The opinion of the court was delivered by Williams, Ch. J. In this case, it appears, I. That the pauper was a bastard child, born within the limits of the town of Bridge-water, and has gained no settlement except by birth. 2. That her mother, at the time the pauper was born, had no settlement in this state, but for the period of three years, and until about one month before the birth of the pauper, resided in the town of Windsor, and being there pregnant, the overseers of the poor of [332] Windsor procured or caused her to be removed or carried to .the town of Bridgewater, when without such procurement or carrying, she would not have left Windsor. It is admitted by both parties, that the place of birth of a bastard child, was the place of its settlement, at the time this child was born. The general policy of our law has been to give bastards the settlement of their mother. The rule of the common law, which treats them strictly as nullius filius^h&s been altered by our" statutes, to a certain extent at least. Thus they are capable of inheriting and transmitting an inheritance on the part of the mother. Whether from the principles of our statute, the common law has been in any way altered or changed in regard to bastard children, any further than the statutes have particularly enacted; is not a question now to be decided, as it is conceded, that at the time of the birth of this bastard, there was no law which gave them the settlement of their mother, and also that an illegitimate child -was at that time settled in the place where born. Now it is an admitted principle, that if a woman pregnant with a bastard child, is by the parish officers procured to go into another parish, and there be delivered, the child gains no settlement by birth in the parish to w'hich the mother was fraudulently removed. The law terms this procurement or practice, where done by the officer of the town, as fraudulent, and therefore inoperative. Masters vs. Child, 3 Salk. 66. It is to be observed, that this principle applies only when the fraudulent removal is procured by the officers of the town or parish, to whom the duty of taking charge .of the poor is committed : when done by others, it has no effect. It has been contended, that this applies only to the case where the mother is settled in the parish from which she is removed, and probably most of the cases in the reports are of this description. But it will be remembered that as to the settlement of an illegitimate child, the settlement of the mother in England is of no importance whatever. Thus if mother resides in a parish, under a certificate, in which .case she gains no settlement in the parish where she resides, and is there delivered of an illegitimate child. The child is settled where born, and where the mother resided at the time, though residing under a certificate, and though settled in another town. But further, the case read from 4 Barn. & Adolph. 211, King vs. Maltersley, does not recognize any distinction in the case of a fraudulent removal, whether the mother was settled in the parish from which removed or not; but lays down the principle generally, that where the rnoth-,®r is fraudulently removed by parish officers, the child is settled in [333] the parish from which the mother was so removed. And indeed it must be so from reason, as well as from authority. A residence thus attempted to be changed, for such a purpose, cannot be considered as legally changed. A woman thus removed, must be considered as still residing in the town or parish where she had resided, and where, but from the procurement, she would have continued to reside. The law does not, and cannot permit a settlement to be thus changed, or to be acquired in a parish or town, other than what it would have been, but for the improper practice of its officers. It will be remembered, that it is only where the officers of the town practice this fraud, that these consequences are visited on the town. There are other cases in which the place of birth of an illegitimate child, for the purpose of settlement, is not considered as the particular town or place where the mother is delivered.— Children of this description, born while the parent is in jail, or in a work-house, or after an order of removal, are considered as born in the place where the mother resides, or has her settlement, or to which she was about to be removed and have her residence. The jail or work-house is considered, for this purpose, as situated in every town in the county. The case of Tewksbury vs. Twining, 2 Bott’s Poor Laws, 1, 2, is a very clear and decisive authority on this subject, that an illegitimate child must be provided for by the parish which used the practice to have the child born in another parish. The result is, that this pauper must be considered as born in Windsor, where her mother had resided for a great number of years, and until a short period antecedent to the birth of this pauper, and where, as the jury must have found, under the charge of the court, she would have continued to reside, if the overseers of the poor of Windsor had not caused her to be removed to Bridgewater. And from the conceded principle that the place of birth of an illegitimate child was at this time the place of its settlement, the pauper had her settlement in Windsor, and was duly removed. Judgment affirmed,