The opinion of the court was delivered by
Royce, Ch. J.The case is brought here upon exceptions to the decision of the county court, first, in overruling the motion to quash the proceedings in reference to the family, and second, in sustaining the order of removal upon the merits.
The ground of the motion is, that the members of the family, besides the wife, are not named; and there are many precedents, both in England and this country, for quashing such proceedings as to the family, when it does not appear how the family was constituted. This is said to be for the reason, that the order and warrant may, in such a case, operate upon persons not liable to be removed with the pauper; as upon hired domestics, or temporary inmates of the household. But that reason fails in this instance, since the family is described as consisting of the pauper’s wife and his four children. It is contended, however, that the defect is not cured, inasmuch as the children are not alleged to be minors. But we think the want of such an averment is not, in this case, fatal. For so long as it appears that they were the pauper’s children, and living with him as part of his family, we should rather intend that they were dependent upon him as a parent, and subject to his parental control, than that they were adult children and emancipated.
The remaining inquiry regards the paupers’s settlement. He was born in Essex in 1814, being the illegitimate son of a woman then having her settlement in that town. In 1827 the mother acquired a settlement in Jericho by marriage; and the question is, whether her minor son, the pauper, took that settlement, or retained his settlement in Essex.
It is certain, that, by common law, he could derive no settlement from his mother, since he would be regarded, for this purpose, as for nearly all others, as nullius Jtlius. His place of birth would ne*96cessarily be his place of settlement, unless fraud had been practised to occasion the birth to happen at that place, or the mother had been transported or conducted thither under legal authority. 1 Bl. Com. 363, 459. Reeve’s Dom. Rel. 276. 3 Burns’ Just. 357. Manchester v. Springfield, 15 Vt. 385. And the statute of 1801 (the only existing statute in relation to settlements, when this pauper was born) had no provisions touching derivative settlements. It did not intercept such as resulted from common law, as in the case of a wife, or legitimate child, nor did it confer any in the case of an illegitimate. The pauper, therefore, became settled in Essex, at his birth, by force of the common law.
The subsequent statute of 1817 enacted, that illegitimate children should have the settlement of their mother. But the statute, in its terms, being wholly prospective, (“settlements shall hereafter be acquired” &c.) it ought not to be made retrospective by construction. And hence it may be assumed, that the statute did not operate to supercede the existing settlement of the pauper by that of his mother, or to merge the former in the latter, when they had previously been distinct and independent.
This position is moreover established by the case of Manchester v. Springfield, before cited, which, so far as the statute of 1817 was concerned, is identical with the present statute.. And as the mother’s original settlement in Essex must be taken to have continued until her marriage in 1827, it follows, that the pauper never had her settlement before that event.
The question recurs, was the new settlement, which she then acquired, communicated to the pauper by the statute of 1817, and his own previous and independent settlement thereby determined ? In regard to the settlement of married women, that statute was merely in affirmance of the common law. And it has hitherto been so considered in relation to the settlement of legitimate children. They “ have the settlement of their parents,” as well by force of the common law, as under the statute. But the common law does not give to children by a prior marriage the settlement, which the mother may acquire by a subsequent marriage. The reason is, that such children do not, as a matter of course, constitute any part of the new husband’s family. He is not bound to provide for them, nor can his wife do so, without his consent. Consequently they retain the *97settlement, if any, which they had before such marriage of their mother. Freetown v. Taunton, 16 Mass. 52. Dedham v. Natick, Ib. 135. And thus far the statute in question has been regarded as operating precisely to the same effect. The reasons for the common law rule have lost none of their force by the passage of that statute.
But it is not perceived that any satisfactory distinction, in this respect, can exist between the cases of legitimate and illegitimate children. The statute is equally as positive, that the former shall have the settlement of their parents, as that the latter shall have the settlement of their mother. And a settlement acquired by a widow, otherwise than by marriage, (a settlement in her own right,) not only supersedes her previous settlement, if she had one, but is communicated to her minor children, and supersedes theirs, Bradford v. Lunenburgh, 5 Vt. 471. So a settlement, thus gained by the mother of an illegitimate child, would necessarily be followed by the like consequences. But unless the marriage of a mother could operate, under the statute of 1817, to change the settlement of legitimate children, it must be vain to contend that it should have that effect in the case of an illegitimate child.
But cases are cited from the neighboring states, which are claimed to have established a different doctrine. They will be found, however, to conclude nothing upon the construction of such a statute as that of 1817. The case of Petersham v. Dana, 12 Mass. 429, arose under their statute of 1789, which enacted, that an illegitimate child should be deemed to be an inhabitant zoith his mother, until he should gain a settlement in some other town, or district. And it was considered, that these words of the statute could not be satisfied, unlbss the settlement of the child became changed with that of the mother, even though hers was changéd by marriage. So the case of Canajoharie v. Johnstown, 17 Johns. 43, turned upon the words in their statute — “ last legal settlement of the mother; ” the court remarking, that the very expression “ last legal settlement ” supposed that the mother’s settlement might be changed. In Connecticut they appear to have recognised a peculiar and local common law, as applicable to the case of illegitimate children. Their doctrine would seem to be, that such a child does not take a settlement by birth, if the mother has a settlement within the state, but that he takes her settlement. But the case of New Haven v. Newtown, 12 *98Conn. 165, is the only one recollected, in which a settlement of such a child, actually acquired by birth, was afterwards changed by a marriage of the mother. And that case was decided by a bare majority of the court.
The conclusion is, that, as in this instance, the new settlement of the mother was not acquired in her own right, it was not communicated to the pauper, and that he was therefore duly removed.
Judgment of county court affirmed.