at a subsequent term, delivered fthe'opinion of the Court.
The settlement of the mother,.at the time of the birth of the pauper, an illegitimate child, was in the town of Leeds. This fixed the settlement of the pauper there, where it would by law remain, until she gained one in some other town. It is insisted that, she subsequently gained a settlement in Fayette, in' virtue of’ the act of March 21, 1821, where it is contended she then dwelt and had her home.
It appears that one Elkins, an inhabitant of Fayette, in July, 1817, gave a bond to the putative father to indemnify and save him harmless from any expense -and trouble arising from her support, until she should- become eighteen years of age. In pursuance of this undertaking, the pauper -resided in the family of Elkins, from that time, until after the passage of the.law before adverted to, when she was about ten years old. We are not apprized of the reasons, which induced the Circuit Court of Common Pleas, in 1813, to commit the child to the keeping of the putative father for support, until the further order of Court. It was an arrangement to which the mother was constrained to submit, or to forego all further assistance from the father; as it was doubtless competent for the Court to determine for what period, and to what extent, he should be chargeable. But it was not in the power of the Court to emancipate the child from its mother. Her parental rights remained in full force, and might be exerted by her, whenever she “might think proper to reclaim the" child ; although she would thereby take upon herself the entire burden of its support.
This right was expressly recognized in Wright v. Wright, 2 Mass. 109. Parsons C. J. there says, that the custody and control of an illegitimate child belongs to its mother, as its natural guardian. And the doctrine of this case is sustained in Somerset v. Dighton, 12 Mass. 382; and it is there further sta*413ted, as resulting therefrom, that an illegitimate child ought not to be separated from its mother, while a minor, without her consent. It does not appear that the mother was assenting or even privy to the placing of the child in the family of Elkins. In the cases cited for the plaintiffs, it has been repeatedly holden that a minor cannot gain a settlement in his own right, until emancipated, and that emancipation is not to be presumed.
Nor has it been at any time decided, that parental authority or control ceases, when the parent becomes a pauper. While supported by the town, its exercise may be somewhat restrained or modified by the power, which acts upon the parent; but that restraint ceases, whenever the parent is in a condition to support himself and family. Even while receiving partial assistance from the town, he may lawfully avail himself of the labour and earnings of his minor children. Nor did the marriage of the mother emancipate the child. This point was also decided in the case of Wright v. Wright, before cited, it being there held, that the natural right of guardianship in the mother devolves on her husband on the marriage. It results that there being no emancipation, no change of settlement is proved, and that the plaintiffs are entitled to judgment.