#### * The Inhabitants of Hamilton *versus*The Inhabitants of Ipswich.

A warning under the act of 4 *Will. If Mar.*c. 13, to avoid the gaining of a settlement by a pauper, was without effect, unless, either in the warrant or the return thereof, the length of time was stated that the party warned had resided in the town.

This was *assumpsit*for the support of *Elizabeth Lamson,*a pauper, and was submitted, to the opinion of the Court upon the following facts agreed by the parties : —

*Thomas Lamson,*the father of the said *Elizabeth,*was, in the yeai 1754, lawfully married to *Anna Redington,*and lived in that part of the then town of *Ipswich*which is now *Hamilton,*and which was incorporated into a town by an act passed on the 21st of June, (1793, *Stat.*1793, c. 10,) which act recites and confirms certain articles of agreement, by which, among other things, it was agreed that *Hamilton*should pay to *Ipswich*a certain sum of money, “ as a consideration for being exempted from any expense on account of any poor person belonging to *Ipswich,*previous to this separation, except such persons as may hereafter be returned as paupers from some other town, who were born in, or were formerly inhabitants of, the parish incorporated as *Hamilton.*And any present inhabitant of said parish, who has received only partial supplies from the town, and all persons now inhabitants of said town of *Hamilton,*who have not yet received any support from the town of *Ipswich,*shall hereafter be considered as the inhabitants of the new incorporation, and there to be provided for in future, if necessary.”

The said *Thomas,*at the time of his said marriage, in 1754, had his legal settlement in *Ipswich.*Some time in the year 1762, he removed, with his family, to a plantation not then incorporated, but which, in the year 1788, was made a town by the name of *Noble-borough,*and resided there until November, 1765, when he, with his family, removed to *Barnstable,*in the county of *Barnstable,*where the said *Elizabeth*was born on the 3d of April, 1766. On the 9th day of the same April, the said *Thomas*and *Anna*his wife, with their two other children, *Mary*and *Anna*by name, were warned to depart and leave the said town of *Barnstable.*

*The warrant of the selectmen of *Barnstable,*with [*507 J the constable’s return, and the record of the same in the Court of Sessions, were in the case. The warrant commands the officer to warn *Lamson,*his wife, and two children, to depart, &.c., and to make return of his doings thereon into the clerk’s office of the Court of Sessions, &c., dated March 25, 1766- The officer *494returns the warrant, with a certificate, dated the 9th of April, 1766, that he had warned the said *Thomas Lamson*to depart, with his wife and children within named, out of the bounds of the town of *Barnstable.*And the warrant and return were filed in the clerk’s office of the Court of Sessions.

In the year 1779, the said *Thomas*and his family, including the said *Elizabeth,*removed from *Barnstable*to *Westborov,'*,, in the county of *Worcester,*where they lived until his death, * October, 1786 ;■ and the said *Elizabeth*lived in the county of *Worcester*until 1811 ; it being agreed that she never gained any settlement, except such as may have been derived to her from and under her said father.

If, upon these facts, the Court should be of opinion- that the pauper had her settlement in *Ipswich,*the defendants agreed to be defaulted, and that judgment be rendered against them for the sum of, &c.; otherwise the plaintiffs were to become nonsuit, and the defendants have judgment for their costs.

*Dane,*for the plaintiffs.

The father of the pauper, from whom she must derive her settlement, if she has any, had none in *Hamilton ;*for it is agreed that his settlement was in *Ipswich*in 1754, and that he died in 1786, seven years before *Hamilton*was incorporated, and therefore seven years before *Hamilton*could comn micate a settlement to any one. He was, as to *Hamilton,*like one wing in a new plantation, and dying before its incorporation. (1) Had he been living in 1793, he would have gained a settlement in *Hamilton*under the agreement, as having previously inhabited there. But even in that case, the daughter, being then twenty-seven years of age, had acquired no settlement there. (2) As this pauper is not within any of the exceptions in the agreement, [ * 508 ] * ratified by the statute, she must be chargeable to *Ipswich.*

*Andrews*and *Putnam,*for the defendants.

*Thomas Lamson*was, notwithstanding all his wanderings, settled in *Ipswich,*and was an *inhabitant*of that part now constituting *Hamilton,*within the intention of the parties to the agreement, and of the act of incorporation by which that agreement was ratified. His settlement was communicated to his children, and they must follow it, until they acquire one themselves, which the case negatives as to the daughter in question.

Further, we contend that he gained a settlement by his residence in *Barnstable,*notwithstanding the pretended warning from that place. That warning is so grossly deficient in the requisitions of *495the statute, that it cannot have had the effect of preventing a settlement there.

*Dane,*in reply.

The act of *Will, fy Mar.*has always received a liberal construction ; and the warning in this case was as perfect as that in the case of *Shirley*vs. *Watertown,*(3) which was held sufficient by this Court.

The action was continued *nisi*for advisement, and at the next March term in *Suffolk*judgment was pronounced for the de fendants.

(1)

4 *Mass. Rep.*387, 452. — 6 *Mass. Rep.*445.

(2)

4 *Mass. Rep.*493

(3)

3 *Mass. Rep.*322.

*Curia.*

It is unnecessary to consider the construction and effect of the act for incorporating the town of *Hamilton,*as it appears, from the facts stated by the parties in this case, that the pauper’s father acquired a new settlement after leaving *Ipswich.*He resided in *Barnstable*from 1765 to 1779. This gave him a settlement there, unless duly warned to depart, in the manner prescribed by the provincial act of 4 *Will. Mar.*c. 13. By a subsequent act, , (12 and 13 *Will.*3, c. 10,) the time within which the warning was to be given, was extended to twelve months ; but the law was not in other respects altered.

By the first-mentioned law, it was required that the names of the persons warned, the time of their abode in the place, and the time when the warning was given, should be returned *to the Court of Sessions. The warning given, in this [ ***509 J case, to *Thomas Lamson*and his family does not specify the length of time that they had resided in *Barnstable.*There is no intimation of the time, neither in the warrant of the selectmen, in the return of the constable, nor in the record of the Court of Sessions. The town of *Barnstable*could not, by this irregular and defective proceeding, avoid the effect of *Lamson’s*residence with them for fourteen years.

This necessity, imposed by the act, of specifying the time of the pauper’s residence in the town before he was warned to depart, might prove a very salutary check on the carelessness or fraud of ■the officers concerned. It might be supposed that they would not undertake to warn any person who had resided among them more than twelve months, if required to state in the warrant or the return how long the person had been there; and that they would not venture to misrepresent that fact, whilst it was recent, and probably within the knowledge of many people, who would be present when the return should be made. The proceeding being entirely *ex parte,*these precautions might be deemed important. But whatever was the motive of the legislature, the rule established is precise and ah solute, and the Court as well as the parties are bound by it.

*496In the case of *Shirley*vs. *Watertown,*(1) which was referred to b.y Mr. *Dane*in reply to this point suggested at the argument, the Court did not undertake to dispense with any of the provisions of the statute. They decided that a legal warning given to the father, by which he was prevented from gaining a settlement, would prevent his wife and daughter, then in his family, from gaining a settlement by still continuing with him.

As *Thomas Lamson*was not regularly warned from the town of *Barnstable,*and as the pauper in question has no other settlement than what she derives from her father, the defendants are discharged from all liability for her support. According to the agreement of the parties, the plaintiffs must be called.

*Plaintiffs nonsuit.*

ADDITIONAL NOTE.

[See *Abington*vs. *North Bridgewater,*23 *Pick.*170. — *Middleborough*vs. *Plympton,*19 *Pick.*489. — *Franklin*vs. *Dedham,*18 *Pick.*544. — *Meredith*vs Exeter, 8 *N. H.*136. — *Milford*vs. *Milton,*8 *N. H.*420. — *Jeffrey*vs. *Mount Vernon,*8 *N. H.*436. — *Coventry*vs. *Boscawen,*9 *N. H.*227. — *Townsend*vs. *Athens,*1 *Verm.*284. — *Shrewsbury*vs. *Mount,*&c. 2 *Verm.*220. — *New Haven*vs. *Vergennes,*3 *Verm.*89. — Read*ing*vs. *Weathersfield,*3 *Verm.*349.— *Wheelock*vs. *Lyndon,*6 *Verm.*524. — F. H.]

(1)

3 *Mass. Rep.*322.