Overseers of Reading v. Overseers of Cumree

| Pa. | May 30, 1812

Tilghman C. J.

It is enacted by the act “ for the relief of “the poor” (9ih March 1771) that “every indented servant, “ legally and directly imported from Europe into this province, shall obtain a legal settlement in the city, borough, “ township or place, in which such servant shall first serve “ with his or her master or mistress for the space of sixty “ days; and if afterwards such servant shall duly serve in “ any other place for the space of twelve months, such ser“vant shall obtain a legal settlement in the city, borough, “ township or place where such service was last performed, “ either with his or her first master or mistress, or on an “assignment.” The pauper in this case was bound by a legal indenture in the township of Robeson; and having served there less than sixty days, was assigned to a person living in the borough of Readings where she served sixty days; so that Reading is the place where she first served her master sixty days. But it is objected, that in order to gain a settlement by a service of sixty days, such service must be to the master to whom she was bound, and not to an assignee. There is no reason for this distinction, nor is Unsupported by the words of the act, which do not restrict the service to the first master. The master under the assignment is as much a master as the person to whom the servant was originally bound; and so the legislature considered him, for in the last part of this very clause, mention is made of the first master and the master under the assignment. It is not in the power, of the servant to prevent an assignment; and it would be most unreasonable to torture the words of the law, so as to prevent the gaining of a settlement, where there has been a legal binding and a service under it for sixty days.

A second objection to the settlement in Reading is, that the assignment was not legal, because not made in the presence of a justice of the peace. The act of 1700 enacts that “ no servant shall be assigned over to another per“son, but in the presence of one justice of the peace of “the county, under the penalty of 10/.” This act was intended for the benefit of the servant, and ought not to be construed to his prejudice. The assignment may be avoided by the servant, but it is not declared by the act. to be absolutely void; and when both parties have chosen to abide by it, I consider it as a good assignment for the purpose of gaining a settlement. The township of Reading has had the benefit of the pauper’s service, as much as if the assignment was in strict legal form. This rule of construction has been adopted in a much stronger case, Parish of St. Nicholas v. Parish of St. Peters, 3 Burn’s Justice, 384, 385, where an indenture, declared to be absolutely null and void by the statute 5 life., was held to be good for the purpose of gaining a settlement. But even if this assignment was absolutely void, the settlement might be supported, because in that case, the service being performed in Reading with the consent of the first master, might be considered as service to the first master, or, as the act expresses it, service with the first master, for I consider the word with as synonimous with to. If the master lives in one township and employs the servant in another, the settlement will be in the township where the servant resided, for that is the township which has reaped the fruit of the service.

There remains one more objection to be considered. It is this: that the pauper, being a married woman, could have no settlement of her own during the coverture, and that although the 19th' section of the act for the relief of the poor, provides, that if the husband has no known legal settlement, the wife shall be deemed to be legally settled, in the place where she was last legally settled before her marriage, yet the order in this case is bad, because it is not expressed that the husband had no known legal settlement. To this objection two answers have been given, either of which is sufficient. In the first place, it ought not to be presumed for the purpose of avoiding this order, that the husband had a settlement when none appears. This is a reasonable principle, and is supported by the cases cited from 3 Burn’s Justice 489; and in the next place, it is provided by the 4th section of the act of the 20th of March 1810 (commonly called the consolidating hundred dollar act) that on appeals from the order of two justices to the court of Quarter Sessions, the court shall decide according to the merits, without regard to defects in the order either as to form or substance. Some question has been made, as to the kind of order intended by this act. But as it embraces an order of removal in its terms, and I know no reason for excluding such an order, I consider the act as comprehending it. We have the evidence before us on which the Sessions decided, and there is nothing in it, which proves that the husband of the pauper had any settlement. I am of opinion that the judgment of the Court of Quarter Sessions should be confirmed.

Yeates J.

It appears to me that the present case is fairly embraced by the first branch of the 18th section of the poor act. The pauper was an indented servant, legallv and directly imported from Europe into this state, and first served with her master the space of sixty days within the borough of Reading. At all events I think the defect of an assignment before a justice of the peace cannot be taken advantage of by that borough on a question of settlement. The present indenture was executed before the register of German passengers, and its validity cannot be questioned. The servant, having served under it twelve months, gained thereby a legal settlement. Reading had the benefit of her services during that period, and cannot now urge a default on th« part of the original master, in order to affect her claim of support when she has become poor and impotent. This appears so just and reasonable in itself, that an act of the master over which the servant had no control should not materially injure the latter, that high authority would be necessary to establish a contrary doctrine. But the cases cited fully support it; and the words of Lord Hardtvicke are, that an indenture may be voidable at the election of the parties themselves, if they think fit to take advantage of it, and not by a third person. St. Nicholas v. St. Peter’s, Bur. Set. Ca. 91. See also St. Petrox v. Stoke Fleming, Ib. 250. On any other construction, the pauper, according to the language of one of the cases, must starve in the name of God, which I cannot accede to.

If the order of removal should be supposed defective by reason of its not appearing therein that the husband of the pauper had no known legal settlement, the same might have been amended, both in form and substance, by the express provisions in section 4th of the act of the 20th of March 1810, or the Sessions might have proceeded to hear the appeal on its merits. It was competent to the borough of Reading to have shown the settlement of the husband upon the appeal, and if they had so done, the order of the justices must have been quashed. This court will not make any intendment against the order. 3 Burn's Just. 489, (16th ed.)

I am clearly of opinion that the order of Sessions should be affirmed.

Brackenridge J. having been sick during the argument, gave no opinion.

Order of Sessions confirmed.