The opinion of the Court was by
Whitman C. J.The verdict taken in this case for the .defendants is to be set aside, and a new trial granted, if the rulings of the Judge, at the trial, should be deemed incorrect. The first was, that a settlement under the statute of Massachu*307setts, passed on the eleventh of February, 1794, determining what should constitute a legal settlement, did not embrace the case of an occupant of an estate of freehold, for the term of three years, of the clear yearly income of ten dollars per annum, if, in the mean time, the occupant received support from the town as a pauper; and in this he is clearly supported by the opinion of the Court in the case of Brewster v. Dennis, 21 Pick. 233 ; and the case of East Sudbury v. Sudbury, 12 Pick. 1, is to the same effect, in a case quite analogous in principle.
The other point, supposed to be incorrectly ruled, was, that the estate of the clear yearly income of ten dollars per annum, must be valued as if it had been subjected to taxation, when the forbearance to tax it would seem to have been on account of the poverty of the occupant. And in this we think also, that the opinion of the Judge was unexceptionable. The legislature found it necessary to establish some uniform rule, as to what should, in this particular, be sufficient to gain a settlement. Any rule established in such case must, necessarily, be an arbitrary one. The design was to fix upon the the least quantum of estate a man should possess to entitle him to gain a settlement. To arrive at this result, and establish a sure guide, it was then deemed expedient to prescribe, that the estate should be of the clear annual income of ten dollars per annum. This mode of ascertaining the value of the estate was supposed to be the best that it was practicable to devise. It must have been predicated upon the supposition, that it would.be subjected to the ordinary .deductions from its productiveness, such as labor bestowed, dressing supplied, and taxes imposed upon it. In order that the test of value should be truly applied, these deductions would be indispensable. It would not be a fair criterion, if it. might be affected by the forbearance, on account of the poverty of the occupant, to levy taxes upon it. The estate to the- owner might be rendered productive, when otherwise it would not be so, if it were situated in a place, where his neighbors, relatives or -friends, from motives of humanity or charity, were disposed to perform the labor upon *308it, or furnish it with dressing gratuitously; and the forbearance to tax it, from the same consideration, would be similar in effect. The net income therefore must be taken after all such deductions are made. It is admitted, if the estate in question had been subjected to taxation, its net income would' have been less than ten dollars per annum. We think, therefore, that judgment must be-entered on the verdict.