Town of New Haven v. Town of Huntington

| Conn. | Jun 15, 1852

Waite, J.

It was admitted, on the trial of this cause, that the original settlement of Hannah Johnson was in the town of Huntington. That settlement must remain, until it is lost, by the acquisition of a new one, and was communicated to her son Richard W. Johnson, at his birth, unless he derived a different one, from his father. Hebron v. Colchester, 5 Day’s R., 175.

At the time of her marriage, her husband, Titus Johnson, was a slave, belonging to a man living in Cazenovia, in the state of New York. Unless her settlement was changed, in consequence of that marriage, it remained as it originally was, in the town of Huntington. What effect the marriage of a free woman with a slave will have upon her' previous settlement, under the laws of the state of New York, does not appear; and in this case, those laws must govern. If they are the same as ours, the settlement will remain unchanged,. because a slave is incapable of imparting a settlement, either to his wife or his children. Windsor v. Hartford, 2 Conn. R., 355.

Indeed, it is not insisted on the part of the defendants, that her marriage, so long as her husband remained a slave, had any effect upon her settlement; but they .claim, that when he became emancipated, his wife acquired his settlement, and his son also.

It appears from the motion, that at the time of his emancipation, his wife was residing in this state, where she has ever since resided, and that his son, Richard W. Johnson, was born in this state. Now if it were shown, that by the laws of the state of New York, his marriage and subsequent emancipation would give his wife and child a settlement in that state, under the circumstances stated in the motion, then the claim of the defendants would be well founded. But the difficulty is, we are not informed what these laws are, so far as they are applicable to the case under consideration ; and we must look to them, in determining whether a settlement has been acquired in that state.

Thus, in the case of Middletown against Lyme, it was proved, that the father of the pauper removed to the state of New Hampshire, where he resided more than a year, without being warned to depart, and that, by the laws of that state, such residence conferred upon him a settlement there; and the court held, that his original settlement in this state was lost, by the new one acquired in New Hampshire. 5 Conn. R., 95.

The case under consideration seems to fall directly within the rule repeatedly recognized by this court.

Thus, where a woman, having a settlement in the state of Massachusetts, had an illegitimate child born in this state, and although by our law the child would take the settlement of its mother, if she had one in this state, yet as it did not appear, that, by the laws of the state of Massachusetts, the mother’s settlement there would be conferred upon an illegitimate child, born in another state, the court, in the absence of such evidence, held that the child was settled in the town where it was born. Marlborough v. Hebron, 2 Conn. R., 18.

So in the case of Sterling v. Plainfield, an action was brought to recover for the support of one Sylvester Stacey, his wife and children. His father was born in the state of Massachusetts, where he had a settlement. He afterward came to this state, married here, and his son was born here, but he never acquired a settlement, in this state. The question was, whether the son took the settlement of his father, in Massachusetts, or a settlement by birth, in Connecticut. 4 Conn. R., 114.

Hosmer, C. J., in delivering the opinion of the court, remarked: “Does the law of Massachusetts recognize a child born in another state, as being settled with his father in that state ? This presents the only difficulty in the case. On this point the record is silent; and we can not judicially know what the law of a foreign state is, but it must be proved as any other fact. We are not to assume, that Sylvester Stacey would be deemed a settled inhabitant in the state of Massachusetts; and without that assumption, we can not say that he had not a settlement by birth in Sterling. It would be unjust and against law to deprive a person of his settlement here, before we know, that he is settled elsewhere, and thus to render him a vagrant; and on this sub ject we must not be guided by conjecture.” 4 Conn. R., 114.

Similar reasoning is applicable to the case under consideration. As we are not informed that, by the laws of the state of New York, the marriage of Hannah with Titus Johnson, a slave in that state, and his subsequent emancipation, have any effect upon her previous settlement, while residing in this state, or that his settlement was communicated to his son, subsequently born in this state, we are not authorized to say, that her settlement was ever changed, or that the son ever had any settlement other than the one derived from his mother.

And if the son’s settlement, thus derived from his mother, was in the town of Huntington, it was communicated to his wife upon their marriage, and to his children when born.

And the settlement of Sybil Johnson, thus derived, was in, like manner communicated to her illegitimate daughter and grandchildren, subsequently born.

"Whether the settlement of the master of Titus Johnson was in Cazenovia or not, in our judgment, will not materially vary the question. We do not therefore review the evidence detailed in the motion, nor determine the question made by the counsel, whether the judge drew the correct conclusion from the evidence.

A new trial is therefore not advised.

In this opinion the other judges c.oncurred, except Ells-worth, J., who tried' the cause in the court below, and was therefore disqualified.

New trial not to be granted.