Town of Peacham v. Town of Waterford

The opinion of the court was delivered by Peck, J. Principles of humanity, as well as public policy, forbid the removal of paupers under the pauper laws, to the town' of their legal settlement, where the proceeding involves the separation of husband and wife. This common law. principle, and many other principles of the common law of like character relating to the removal of paupers, have always been regarded as in force in this state, as qualifying the general language of our statute on this subject. Notwithstanding the general language of the statute authorizing the removal of paupers to the town of their legal settlement, a pauper cannot be removed from the possession of his or her freehold. And notwithstanding the provision of the statute that “ a married woman shall follow and have the settlement of her husband, if he have any within this state; otherwise her own at the time of her marriage, if she had any, shall not be lost or suspended by the marriage,” if she is resid [157] ing on her freehold estate with her husband, who has a settlement in another town in the state, she cannot be removed from the possession of her freehold ; nor can her husband be removed, as that would lead to the separation of the husband from the wife, or the wife from her freehold. So a married woman, while the ordinary relation of husband and wife exists, whose husband, residing in the state, has no settlement in the state, cannot be removed to the town of her settlement at the time of her marriage, although by express provision of the statute that settlement is not lost or suspended by the marriage. The reason is, her husband cannot be removed to that town, as he has ño settlement there ; and to remove her there, would separate her from her husband. If the husband has abandoned his wife and left the state, the wife, and also their minor children with her, may be removed to the town of his legal settlement, if he has any, and if not, then to the town of her legal settlement at the time of her marriage. But the confinement of the husband in jail by virtue of legal process, as alleged in the replication, cannot be regarded as an abandonment of his family by him, or as breaking up the family relation ;■ and does not justify the order of . removal in question. The family relation still existing cannot be thus invaded. The industry of counsel has furnished us with no instance where such order of removal has been made for such cause; and opportunities for such experiment must have been frequent, especially during the existence of our old law authorizing imprisonment for debt. The county court properly adjudged the replication, insufficient. Judgment affirmed.