In action for the support of a pauper, it appeared that the husband of the pauper resided on a freehold estate in the defendant town from January, 1863, to January, 1868; that during the whole of this period he was more than twenty-one years of age; that he was an alien until November, 1864, when he became a naturalized citizen; that in May, 1867, his wife became an insane pauper, and with his consent was committed to the State lunatic hospital; and that in January, 1868, he ceased to be a resident of the defendant town. Held, that by the Statutes of 1868, chap. 328, sect. 1, as amended by the Statutes of 1871, chap. 379, sect. 1, the husband of the pauper acquired a settlement in the defendant town. The Statute of 1868, chap. 328, sect. 1, as amended by the Statute of 1871, chap. 379, sect. 1, relating to the settlement of paupers, is constitutional.

Endicott v. Hopkinton, 125 Mass., 521 (1878).

In an action against a town for supplies furnished J. S., a pauper, the issue was whether J. S. had acquired a settlement in the defendant town under the Statute of 1874, chap. 274, by paying a tax duly assessed on his poll or estate for three years of the five years of his residence there. It appeared that in one of the three years his name was not on the valuation list, nor on the tax list made by the assessors, and delivered with the warrant to collect the same to the collector; that a clerk of the collector, without authority, and without the knowledge of the assessors, until after this action was brought, added the name of J. S. to the list, and he paid a poll tax to the collector, who paid it into the town treasury. Held, that J. S. had not been duly assessed for that year, and that the town was not estopped to deny the same.

Plymouth v. Wareham, 126 Mass., 475 (1879).

In an action to recover for aid furnished to the wife and minor children of John Maloney as paupers in the years 1876 and 1877, it appeared that said Maloney resided in Springfield from July, 1862, to December, 1867, and paid taxes duly assessed to him for three years within that time. He became of the age of twenty-one years in May, 1861. This is sufficient to give him a settlement in Springfield under the first section of the Statute of 1874, chap. 274, if it applied to his case. But that section is qualified by the third section, which provides that "no existing settlement shall be changed by any provision of this act, unless the entire residence and taxation herein required accrues after its passage; but any unsettled person shall be deemed to have gained a settlement upon the completion of the residence and taxation herein required, though the whole or a part of the same accrues before the passage of this act." As the residence and taxation of said Maloney in Springfield was wholly before the passage of the act, he would not thereby gain a settlement, unless he was an "unsettled person" having no existing settlement. This depends upon the question whether he had a settlement in Wales, derived from his father, Michael Maloney.

Upon this question the facts agreed are, that said Michael, a native of Ireland, came to this country in 1852, being then over the age of twenty-one years, and resided in Wales with his family, among whom was his son John, until the year 1861, when John became of age; and that, between 1852 and 1861, said Michael lived upon an estate of freehold, owned by him in said Wales, for more than three years successively. This would have given said Michael a settlement in Wales under the General Statutes, chap. 69, sect. 1, clause 4, if he had not been an alien.

The Statute of 1868, chap. 328, sect. 1, as amended by the Statute of 1871, chap. 379, was intended to remove all disabilities arising from alienage; and it provides that "hereafter any person of the age of twenty-one years, having the other qualifications mentioned in the fourth, fifth, ninth, and twelfth clauses of the first section of chapter sixty-nine of the General Statutes, shall be deemed to have thereby gained a settlement as therein provided, although not a citizen of this or any other of the United States, whether such other qualifications shall have been acquired before or after the enactment hereof." Under those Statutes said Michael must be deemed to have gained a settlement in Wales by virtue of his three years living upon an estate of freehold owned by him, and all the legal consequences and incidents of such settlement must follow. [Endicott v. Hopkinton, 125 Mass., 521; Commonwealth v. Sudbury, 106 Mass., 268.] Among those consequences is that his minor children who were living with him would gain from their father the same settlement. The Statute of 1868, as amended, was clearly designed to be retroactive, and its effect is to fix the time when the settlement of said Michael in Wales commenced, to be at the expiration of the three years' occupancy of an estate of freehold. At that time said John was a minor living with his father, and the result is that he then gained a derivative settlement in Wales, which continues until he acquires a new one. As he had acquired no new settlement before he went to Springfield, his settlement in Wales continued, and was an existing settlement," which was not, under the Statute of 1874, chap. 274, changed by his residence in Springfield. Worcester v. Springfield, 127 Mass., 540 (1879).

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On a complaint, under the General Statutes, chap. 70, sect. 5, by a town against a father for the support of his adult pauper daughter, it may properly be found that he is of" sufficient ability" to contribute to such support, where the value of his entire property, above his debts, is between $5,000 and $6,000, notwithstanding he is in poor health, unable to do hard work, has a wife and infant child dependent upon him, and his income, although he has lived in a prudent manner, is, and has been for some years, less than his expenses. Templeton v. Austin C. Stratton, 128 Mass., 137 (1880).

In an action by one town against another for the support of W, a pauper, the issue was whether W had left the defendant town in 1856 with the intention of acquiring a domicile in the town of A. It appeared that W went from the defendant town to A in May, 1856, taking with him his tools for shoemaking, some household furniture, and one of his two children, and, after living there two weeks in the house of a relative, returned to the defendant town. The defendant offered to show by a witness that, in the spring of 1856, he met Wat a stable in the defendant town, and W said to him that he had his goods loaded and was going to A to live; that he was going to work on a farm some of the time, and at shoemaking the rest; and that he did not see W again until he returned to the defendant town. Held, that it did not appear that the declaration accompanied the act of removal; and that it was properly excluded.

under no legal obligation to support his step-child; and the fact that such child receives aid from a town as a pauper, upon the application of the step-father, will not make the latter a pauper.

Brookfield v. Warren, 128 Mass., 287 (1880).

In an action by a city, under the General Statutes, chap. 73, sect. 25, against a woman, to recover $479, paid for her support at a lunatic hospital, there was evidence that the defendant when out of the hospital lived with an

intemperate husband and a lame daughter, neither of whom rendered her much assistance, and that the defendant's mental condition was such as to incapacitate her for any labor; that she owned a lot of land worth $375, which, after part of the money sued for had been paid by the plaintiff, she had conveyed to her daughter without consideration; that, after this conveyance, she effected insurance on the house in her own name, and the attorney of her guardian had received $775 from the insurance company for the destruction of the same by fire, which sum was claimed by the daughter. Held, that this evidence would warrant a finding that the defendant was not "of sufficient ability" to pay the sums expended by the plaintiff.

Newton v. Ann Feeley, 130 Mass., 12 (1880).

Under the Statutes of 1878, chap. 190, sect. 1, clause 10, providing that any person "duly enlisted and mustered "into the military service of the United States, as a part of the quota of a city or town, under any call of the President during the late civil war, and who fulfils the other requirements of that act, shall be deemed to have acquired a settlement in such city or town, the fact that a person has been enlisted and mustered by a false name does not prevent his acquiring a settlement; and, in an action by one town against another for his support as a pauper, his identity may be shown by parol evidence.

In an action by a town against another town for the support of a pauper, the defence was that the pauper had acquired a settlement in a third town by reason of his military service in the army of the United States as part of the quota of that town. The pauper testified that he heard that he was drafted, and went into another State to avoid the draft, and there enlisted, but was not mustered into the service; and that he then left that State, and enlisted and served as part of the quota of the town in question. Held, that this evidence did not show that he had been "proved guilty of wilful desertion" within the meaning of the Statute of 1878, chap. 190, sect. 1, clause 10.

Milford v. Uxbridge, 130 Mass., 107 (1881.)

Action of contract to recover the amount expended for the relief of Bridget Nolan, a pauper, whose settlement was alleged to be in the defendant city. Answer, a general denial.

The case was submitted on the following agreed facts: The plaintiff is entitled to recover the amount claimed, if Bridget Nolan had a settlement in Boston in December, 1879, and January, 1880. She married Hugh Nolan on Aug. 11, 1861, in Boston, and they have lived together as husband and wife ever since. They so lived in Boston from May, 1864, until June, 1871, during which time neither he nor she received aid as a pauper. The husband has never had a settlement in this State, nor did Bridget at the time of her marriage have any settlement in this State, nor has she ever had a settlement in this Stat unless she gained a settlement in Boston by her residence therein.

Upon these facts the Superior Court ordered judgment for the plaintiff; and the defendant appealed to this court.

ABSTRACT OF OPINION.

LORD, J. The constitutionality of the Statute of 1879, chap. 242, was argued by the defendant. The precise ground of objection to its constitutionality appears to be that, by the phraseology of the statute, there is an apparent judicial construction of the Statute of 1878, chap. 190, and, that construction being different from the construction given by this court to the same statute, it is an assumption of judicial power by the Legislature. If it be seeming, it is only

seeming. It does not purport to give to the Statute of 1878 a construction of itself to be valid and binding during the interval between that statute and the enactment of the present; but it is present legislation, to affect only the condition of things at the time it takes effect, as a new law changing existing law. And the use of the words "shall be held to apply" does not mean that the language of that statute shall, without change or modification of it, be held to mean differently from what this court had declared it to mean, but simply that the provisions of that statute "shall hereafter be extended to," etc., unusual form of language in statutes which are in addition to other statutes and in extension of the powers therein granted, taking effect from the time of its passage and not retroacting. In this view, there can be no pretence that the statute is a legislative usurpation of judicial authority.

Cambridge v. Boston, 130 Mass., 357 (1881).

a not

Judgment affirmed.

The Statute of 1874, chap. 274, does not give a settlement to a person who voluntarily ceased to be a resident of the Commonwealth twenty years before it was enacted; nor by derivation to the son of such person, the son not having resided in the Commonwealth within seventeen years before, nor at any time since the enactment; nor by derivation to the wife of such son, who resides in, and after the enactment becomes a pauper within, the Commonwealth.

Fitchburg v. Athol, 130 Mass., 370 (1881).

In an action by one town against another for the support of a female pauper, the agreed facts on which the case was submitted stated that the pauper contracted a valid marriage with a person in a town in another State, where they both resided, and they lived there as husband and wife for three years, when he left his home and family, and had not been heard from by her since; that, in the next month after he left her, she removed to the defendant town, where, five years and eight months afterwards, she married a person who had a legal settlement therein, and they lived together as husband and wife in the plaintiff town, where he soon after deserted her and removed out of the Commonwealth. Held, that the agreed facts did not warrant a finding that the pauper's first husband was dead when she contracted her second marriage.

Hyde Park v. Canton, 130 Mass., 505 (1881).

Action of contract to recover the amount expended by the plaintiff town for the support of Alma Frye, a pauper.

At the trial in the Superior Court, before Allen, J., it was admitted that the pauper was the wife of Stephen Frye. On July 20, 1875, the overseers of the poor of the plaintiff sent the following notice to the defendant's overseers : "Alma Frye, wife of Stephen Frye, whose legal settlement is in your town, but now residing in this town, being in needy circumstances, has applied to this board for relief, which we have granted and charged to your town, and shall continue so to do until you remove or otherwise provide for her support. Mrs. Frye is pregnant, and will be likely to want considerable assistance; expects to be sick soon. She is at our almshouse." On July 29 the defendant's overseers sent the following reply to the plaintiff's overseers: "Yours of recent date at hand, and contents noted in regard to the circumstances of one Stephen Frye's wife, residing in your town. Under the circumstances we decline to pay your bill, and shall continue so to do until we find that the law requires us to do So. At the time of the marriage, the woman, who is 'non compos mentis,' was an occupant of your almshouse and under your charge. We have proof that

The

the inhabitants of Easton winked at the performance, saying that this would take her from their town and throw her on this. Her mother says she will support her if she will go to her; but that is your concern, not ours. If you will please search the statutes, you will find that you have no claim that will stand law." Stephen Frye was born in 1845, and lived in the defendant town and various other places, but had acquired no settlement in his own right. plaintiff contended that Stephen had a derivative settlement in the defendant town through his father, James Frye, and his grandfather, James Frye, sen. The latter, who was born in the defendant town, died there in 1861, at the age of eighty-six years; and, subsequently to 1814, continued to reside there until his death, which occurred in the almshouse, where he had been about a year. He had eight children, who made the defendant town their home, and for the most part continued to reside there until their death. James Frye, jun., died there in 1879 at the almshouse, where he had been about a month. He lived there most of the time, and a portion of the time in other places, but had acquired no settlement in his own right. The plaintiff introduced in evidence the records of various town meetings of the defendant, at which action was taken relative to the support of James Frye, sen., and his children. The defendant

offered no evidence.

The plaintiff contended that the defendant was estopped, under its reply to the plaintiff's notice, from contesting the settlement of the pauper; and that, if not so estopped, the evidence was competent and sufficient, in the absence of any controlling testimony, to establish the pauper's settlement in the defendant town. The judge declined so to rule; directed the jury to return a verdict for the defendant, and reported the case to this court.

ABSTRACT OF OPINION.

LORD, J. To determine whether the defendant is estopped to deny the pauper's settlement, the only inquiry is, Did it deny the settlement in its answer to the plaintiff's notice? There are no direct words of denial; so that the question presented for our consideration is, Does the letter, fairly construed, lead to the inference that the settlement is denied? We are constrained to say that it does not; but, on the other hand, it carries with it a strong implication that Stephen Frye, the pauper's husband, had a settlement in Wareham. The most favorable interpretation that can be put upon the letter in behalf of the defendant is this either that the form of a marriage with Stephen Frye had been enacted by a person incompetent to contract by reason of mental imbecility, and that the marriage was therefore a nullity; or that a fraud had been perpetrated which had been participated in by the officials of the plaintiff town in such manner as prevented the liability to support the woman, as the wife of Stephen Frye, attaching to the defendant town. The defendant cannot be permitted, under the answer of the overseers, to deny the settlement of Stephen Frye. Verdict set aside, and case to stand for trial. Easton v. Wareham, 131 Mass., 10 (1881).

:

Action of contract to recover $69.29, expended by the plaintiff city for the support of Alice V. Phelan, an insane pauper. Answer, a general denial.

The case was submitted on the following agreed facts: The pauper was committed to the Taunton Lunatic Hospital on Aug. 27, 1879, by the authorities of the plaintiff city, she being then a pauper and a lunatic and then residing in that city; and she has ever since been supported at the hospital as a pauper. At the time of her commitment to the hospital she was twenty years old, and unmarried. Her father was James Phelan, who was born in Ireland on Oct.