36 Vt. 320 | Vt. | 1863
(1.) It is insisted on the part of the defendant, that the county court erred in overruling the motion to quash the order. The ground of objection to the order is, that the justices find that the alleged pauper “ is likely to become chargeable,” while the complaint presented to them sets forth that she is chargeable. It is claimed in argument that from this it appears that the justices did not adjudicate upon the cause set forth in the complaint, but upon a different cause. It is not denied but that the justices find sufficient to warrant a removal under the statute, provided the allegation in the complaint had been that she is likely to become chargeable. In order to warrant the justices in finding the pauper.chargeable to the town it would not be sufficient merely to have proof that the town had rendered assistance to her by way of support, they must also have proof of such destitution and want on the part of the pauper as to render such assistance necessary. The same destitution and want would be necessary to be shown, nearly if not quite to the same degree, to warrant them in finding her likely to become chargeable. The justices therefore must have had the same proof and found the same facts as if they had found her actually chargeable, except the fact that the town had actually rendered the needful support. The proof and facts found are therefore not different in the two cases, except that in the former case there is the additional fact that the town had rendered the assistance. The finding of the justices therefore is substantially what is alleged in the complaint, only not to the same extent. The greater includes the less. The motion to quash was properly overruled.
(2.) It is next claimed that the finding of the justices, that
(3.) The more important question arises upon the settlement of the pauper. The settlement in Pawlet derived.from her father remained unless she took a derivative settlement in Fairfax by means of her father’s settlement gained hy him in that town after she became of fall age. The statute provides that “ legitimate children shall follow and have the settlement of their father, if he have any within the State, until they gain a settlement of their own,” &c. This provision is not intended to apply literally without reference to age. It is obvious that the general purpose of this provision was to regulate the settlement of minor children, Wives and minor children have a derivative settlement from the husband or parent because it is not proper that they should be separated while the husband or parent has the legal control, care and custody of them, and the right to their services. If this provision is construed to give the children generally by derivation the settlement the parent may require after such children arrive at full age, until they gain a settlement of then-own, it would seem to be in conflict with other provisions of the statute. For instance, that provision which gives a settlement to “ every person of full age” residing in a town and having a grand list of a certain amount for five years in succession ; and that giving a settlement to “ any person” having a settlement in the State, “ and of full age,” by a residence of seven years without becoming chargeable to any town. But it is claimed that the first provision above alluded to extends to children of full age, unless they have become emancipated, and if not emancipated on coming of age, they take by derivation an after acquired settlement of the parent. This is undoubtedly the rule under the English pauper laws, and the judge seems to have tried the cause upon the theory 'that a similar principle is applicable under our statute. If this is the true principle which should govern the case, the question is whether the direction to the jury as to.
But there is still a question whether under our statute, which was enacted in 1817, children by .continuing to reside with their parents after becoming of full age, can take by derivation an after acquired settlement of the parent — whether the English decisions are applicable. The provision in our statute relative to the settlement of legitimate children is a copy of the Massachusetts statute of 1793. Under that' statute it is there held that such children can take no such settlement. The same is held in N. Hampshire under a like statute, Springfield v. Wilbraham, 4 Mass. R. 493 ; Upton v. Northbridge, 15 Mass. 237; Orford v. Rumney, 3 N. H. 331; Andover v. Merrimack County,
Judgment affirmed.