drew up the opinion of the Court. The action is brought for the support of Dickerman, a pauper. It appeared, that the pauper was the reputed son of Ebenezer Dickerman and his wife Parnel, who were married a few years before the birth of the pauper. But it was further shown, that previously to this marriage, the mother had married one Bonney, who was proved to be living at the time of the second marriage. Such first husband being alive at the time of the second marriage, the latter was ipso facto void, and the children of such void marriage were therefore illegitimate.
It was intimated in the course of the argument, that notwithstanding the second marriage with Dickerman, the pauper might, by presumption of law, have been the child of Bonney, and therefore a legitimate child. It is true that a child born in wedlock, shall be presumed to be the child of the husband ; but it is a presumption of fact, which may be rebutted by proof of non-access ; it was therefore a question of fact, which should have been, and we are to presume was, left to the jury, and that they found that the pauper was the child of the second and void marriage, and so was illegitimate. The bill of exceptions seems to be framed upon that assumption.
In order to ascertain what the legal obligations of the towns respectively were, and to show what was the case in which the one or the other was legally liable, it is necessary to look at the law which creates and regulates those obligations.
By the statute law, as it then stood and now stands, a mar*244ried woman shall always follow and have the settlement of her husband, if he have any within the State ; otherwise, her own at the time of marriage, if she then had any, shall not be lost or suspended by the marriage. Revised Stat. c. 45, § 1, art 1.
Legitimate children shall follow and have the settlement of their father, if he have any within the State, otherwise they shall follow and have the settlement of their mother, if she have any. Ibid. art. 2.
Illegitimate children shall follow and have the settlement of their mother at the time of their birth, if she then have any within the State. Ibid. art. 3.
With these rules in view, it is necessary to see what was the posture of the evidence, when the direction in question was given.
The Court are of opinion, that it was wholly immaterial from which side the proof came ; the rights of the parties were to be determined by all the competent proof in the cause, without considering by which party it was introduced.
Had the marriage of Dickerman with the mother of the pauper been a valid one, he, being legitimate, would then have taken the settlement of his father, which was in Easton. But that marriage being void, ipso facto, without any decree of divorce, the son was of course illegitimate. He would then take the settlement of his mother. The evidence then showed, that she had a derivative settlement in Easton, from her father. This settlement she retained, unless she had changed it by acquiring another. It was contended by the defendants, that she had acquired another by marrying Bonney. But, by the first article above cited, a married woman shall have the settlement of her husband, if he have any; otherwise, she shall retain the settlement which she had at the time of the marriage. In order, therefore, that the marriage of a woman may change her settlement, it must be shown, that she has married a man having a settlement within the State. In other words, it was incumbent on the defendants, after it had been proved that she had a derivative settlement in Easton, to prove two facts, first, that she married, and, secondly, that Bonney had a settlement in some town in the Commonwealth other *245than Easton. Without the latter fact, they have not proved a change in her settlement, by proving her marriage. The Court are, therefore, of opinion, that the direction was right, and that the burden of proof was upon the defendants to prove, that Bonney had a settlement in some other town, without which proof the settlement was fixed in Easton.
It was contended in the argument, that this case must be governed by that of Wilmington v. Burlington, 4 Pick. 174, in which it was held, that the burden of proof was upon the plaintiffs, to prove that John Taylor, the father of the pauper, had no settlement in the Commonwealth ; and this is supposed to be analogous. But we think the decision of the present case is not only consistent with the case cited, but is supported by it. The case is very shortly reported, and it is necessary to examine it with some care. The question was of the settlement of Jonathan Taylor, who had no settlement in his own right. He was the legitimate son of John Taylor and his wife. Of course he took a derivative settlement from his father, if he had any ; otherwise, from his mother. The evidence was, that his mother once had a settlement in Burlington. The defendants then undertook to show, that the father, John Taylor, had a settlement in Reading or Medford, by birth, which, as the law then stood, gave a settlement, though the law was afterwards altered in that respect. Exceptions were taken by the plaintiffs, to the sufficiency of that proof, and the directions of the Court respecting it. After giving an opinion upon these exceptions, the Court proceed to say, that the burden of proof seemed to have been mistaken at the trial, that the burden really was upon the plaintiffs, to prove that John Taylor, the father of the pauper, had no settlement in the Commonwealth; but at the trial, the defendants had undertaken to prove the contrary. What were the obvious grounds of this decision ? The object was not to show that the mother of the pauper had lost her settlement in Burlington by her marriage with John Taylor ; if it had been, the defendants must have proved two things, that she had married, and married a settled inhabitant. The burden of proof would have been up on them, to show that John Taylor had a settlement. But the object of the plaintiffs was to prove that the pauper *246had a derivative settlement from his mother. But, by the stai ute, a legitimate child has the settlement of his father, if he has any within the • State ; otherwise, of his mother. To bring their case within this provision of law, the plaintiffs must show, first, that the father had no settlement in the State, and secondly, that the mother had a settlement in Burlington ; and without proving both these facts, their case was not within the statute.
The obvious difference between the two cases is this; in the present case, the question is upon the derivative settlement of an illegitimate child, who takes a settlement immediately from his mother ; in the case cited, the question was upon the settlement of a legitimate child, who takes the settlement of his mother, only provisionally, in case his father has none in the State. We think, therefore, that the present case does iii no respect conflict with the authority of the case cited.