#### The Inhabitants of Townsend *versus*The Inhabitants of Billerica.

A settlement is not lost until another is gained within the commonwealth; therefore where A, having a settlement derived from his father, removed into *New Hampshire,*and there had a son born, who afterwards came into this state, and had children,— it was holden, that these children had a settlement in this - state derived from their great grandfather.

Where notice was given of a pauper’s becoming chargeable in March, 1811, and again in October, .1812, and an action was commenced in May, 1813, the defendant town was holden liable only for the expenses incurred for three months before the last notice.

Assumpsit for the support of certain paupers. The parties submitted the action to the determination of the Court, upon a statement of facts ; by which it was agreed that the paupers were born in *Townsend,*and are the children of one *Isaac Lewis,*who has no settlement within the commonwealth, unless he can derive one from his grandfather, *Benjamin Lewis,*whose lawful settlement was in the town of *Billerica.*

*Samuel Lewis,*the father of the said *Isaac,*was born in *Billerica*in the year 1746, lived there until after he had attained the age of twenty-one years,'was there married, and about the year 1780 removed out of this commonwealth (without having ever gained a settlement for himself) to the town of *Washington,*in the state of *New Hampshire,*where the said *Isaac*was born in the year 1781 *409The said *Samuel*died in the state of *New Hampshire.*The said *Isaac*came to the town of *Billerica*when a boy, and continued there until he was twenty-one years of age, when he went to *Townsend.*

The town of *Billerica*were notified by the town of *Townsend,*on the 19th day of March, 1811, that the said paupers were in need of relief, were supported at the expense of said

* *Townsend,*and had their legal settlement in *Billerica;*[ *412 J and were requested to reimburse the said expenses. On the 28th of October, 1812, a similar notice and request were given. This action was commenced on the 12th of May, 1813.

If the Court should be of opinion that the paupers had a legal settlement in *Billerica,*judgment was to be rendered for the plain tiffs. If the plaintiffs could avail themselves of the notice of the 19th of March, 1811, judgment was to be for the sum demanded in the first count of the declaration ; if the plaintiffs could avail themselves only of the notice of the 28th of October, 1812, judgment was to be for the sum demanded in the second count. But if the Court should be of opinion that the paupers had not a legal settlement in *Billerica,*the plaintiffs were to become nonsuit, and the defendants to recover their costs.

*W. Hastings,*for the plaintiffs,

made two points in the cause 1. That the paupers, in this case, had their legal settlement iii *Billerica,*by virtue of the second provision in the second section of the settlement law. *(Stat.*1793, c. 34.) *Isaac,*the father of the paupers, derived a settlement from his father, and transmitted it to his children. 2. As to the notice. Although the action was not commenced until after more than two years from the first notice, yet the plaintiffs are entitled to at least two years’ expense, within the meaning and liberal construction of the provision of the statute (1793, c. 59, <§> 9) upon this subject.

*Locke,*for the defendants,

argued that *Samuel Lewis,*the grandfather of the paupers, by removing into *New Hampshire,*suspended his settlement, so that, at the birth of his son *Isaac,*he could not transmit the right. Having never returned to *Billerica,*his settlement was lost at his death. If the law is otherwise, and a pauper may claim a settlement through an ancestor, after an interruption, the right of derivative settlements may be extended back for a hundred generations, and the utmost confusion will be experienced Whether a settlement be considered as the right of * the pauper or the obligation of the town, the argument [ *413 ] equally applies. It need not be observed, that a person’s living in *New Hampshire*has the same effect, as to the opera tion of these statutes, as his living in *Rome*

*410The statute, upon which alone the plaintiffs can claim their remedy, gives a right to recover the expenses only, which shall have leen incurred within three months before the notice *given;*and that only by an action to be commenced within two years after the cause of action arises. The utmost, then, that the plaintiffs can claim, if they are entitled at all, is the amount of expenses incurred within three months previous to the 28th of October, 1812. The delay of prosecuting their demand, under the first notice, amounts to an abandonment of all claims under it. It has lost its effect.

The action was continued *nisi*for advisement, and at the succeeding March term in *Suffolk*judgment was pronounced for the plaintiffs upon the second count in their declaration.

Sewall, J.

The paupers, for whose support by the plaintiffs a demand is made in this action upon the town of *Billerica,*derive their settlement, if they have any in this commonwealth, from their father, *Isaac Lewis.*He was born at *Washington,*in the state of *New Hampshire.*His parents had removed to that place about a year before, from *Billerica,*where the father of *Isaac Lewis*was born in 1746, and where he lived until his coming of age. Upon these facts, without going farther back, we must consider as proved, that *Samuel Lewis,*the father of *Isaac Lewis,*had a lawful settlement in *Billerica*when he removed from thence into *New Hampshire*in the year 1780. But he did not lose his settlement by that removal.

The general principle, that a settlement in a town in this com monwealth is not lost until another settlement in some other town within the commonwealth is gained, applies in this case. Even if it had appeared that *Samuel Lewis*had gained a settle-[*414] ment in *New Hampshire,*by any provision of * the laws of that state upon this subject, it would not have operated to deprive him of his settlement within this state; which is not lost, but by another settlement gained within this jurisdiction, where all the consequences, as they respect the provision made by law for the support of paupers, may be enforced. So, too, if *Isaac,*the son, gained a settlement in *New Hampshire*by his birth there, this had no effect upon his settlement derived from his father’s legal settlement in *Billerica,*which continued to him, notwithstanding his removal.

The consequence is, that *Isaac,*the father of the paupers who are the subjects of this inquiry, having his settlement in *Billerica,*his children have also their settlement in that town; it being stated that they have gained no settlement for themselves; and *Billerica*is liable in this action.

Settlements of paupers are not to be regarded as privileges to *411individuals, to be gained or lost by their agency or consent; but as arrangements in the community directed to the purpose of relieving, supporting, and employing, poor persons, who may be found within the commonwealth, in need of aid and charity. This office is performed, with the best economy and the most suitable care, by towns rather than by the commonwealth. For experience shows that towns support paupers, which are their immediate charge, witli much less expense than is incurred for the support and relief of such persons as, having no legal settlement within the state, are the charge of the public, under the denomination of *state’s poor.*The burden is less, upon the whole, and is about as equally distributed

But as this action was not commenced until May, 1813, more than two years after the notice given in March, 1811, the plain tiffs liad lost their remedy upon that notice, by the limitation pro vided in the statute. The expenses, within three months before notice, may be sued for and recovered, provided the action be commenced within two years after the cause of action arose ; but not otherwise. *Billerica**is not, therefore, [ *415 ] liable for any expense incurred for the support of these paupers at *Townsend,*until three months before the 28th of October, 1812, when the second notice was given.

According to the agreement, upon which this case was reserved, the plaintiffs are entitled upon their second count only ; and judgment is to be entered for them accordingly.