The question is as to the legal settlement of Deborah Smith and her illegitimate children.
First, where is Deborah's legal settlement? The answer is, *586where born, and where she has always lived, unless she has acquired another.
It is said, that she acquired a different settlement, by a marriage with Samuel. If Samuel had a settlement, either in his own right, or derived from his father, that settlement would, on marriage, give a settlement to the wife ; and a woman, who gains a settlement by marriage, retains it, notwithstanding the death of her husband, until she gains another; and the settlement of her illegitimate children follows her’s.
The next question is, had Samuel, at the time of marriage, or at any other time, a settlement of his own, that he could give to his wife. The motion states, that he never acquired any in his own right : if he had a settlement, it must have been derived from his father.
The question then further, is, did John, the father, ever acquire a legal settlement in any town in this state, that he could communicate to his son? He resided long enough in New-Haven to obtain a settlement, if he had a legal capacity to acquire it. And the point of the case is, whether he had this capacity or not?
He was born in Massachusetts ; and moved into New-Fairfield, in 1768. If be acquired a settlement there, he was capable of acquiring one in New-Haven.
The first statute I find on the subject, is in the revision of 1702, edition of 1718, page 59. which seems to contemplate persons of the character of John Smith as foreigners, as strangers or transient persons, incapable of acquiring a settlement by residence. They could have been admitted inhabitants, if “ of honest conversation,” and if accepted by a major part of the town, but not otherwise ; and unless they could have procured certificates of their good characters, would have been liable to be removed to the places whence they came ; and in case of return, after such removal, they would have been liable to corporal punishment.
The next statute, page 130. declares, that if such persons, after warning given, do not depart, they shall forfeit a penalty, and if unable to pay, shall suffer corporal punishment.
The next statute, page 250. dispenses with the penalty and punishment, provided the person be not warned to depart within one year; and further, that if warned, and not, prosecuted within one year thereafter, he may remain. This statute in substance, with the same proviso, was continued in the revision of 1750. So the case depends on the construction of this *587proviso: Whether it was a mere dispensation of pains and penalties; or whether, in addition, it conferred positive rights.
There does not seem to be any particular or marked distinction in the statutes between transient persons or inhabitants of any other state, and inhabitants of other towns in this state, until the revision of 1784.
Were it not for the statute in that revision, I should have strong doubts of the construction of the proviso I have referred to, whether if not removed within a year, or if warned within the year, and not prosecuted within the year, such transient persons did not gain a settlement, by residence. But I think that statute must be taken in affirmance and explanatory of the law as it was, and of what it had always been understood to be. This statute is: “That no transient person, or inhabitant of any other state, shall gain a legal settlement in any town in this, by dwelling therein, unless admitted, by a major vote of the inhabitants, or by consent of the civil authority and select men, or unless he shall be appointed to, and shall execute, some public office, or has been possessed in fee of real estate in the town, of the value of one hundred pounds.” Without some one of these qualifications, such transient person or inhabitant of another state, was always liable to be removed, notwithstanding any length of time he may have been suffered to continue in any town.
It does not appear, that John Smith ever, had any of these qualifications; and of course, if my reasoning be correct, he never acquired a legal settlement for himself. If so, he had none to give his children.
I would advise a new trial.
Hosmer, Ch J. and Peters, J. were of the same opinion; Bristol, J. not judging, being interested.New trial to be granted.