The opinion of the court was delivered by
Royce, J.It is not claimed that the husband of the pauper, Henry E. Bates, ever acquired a settlement in his own right in *378any town in the state, but that he had a derivative settlement from his mother, Elmira Bates; and it is clear, from the facts, found by the referee, that if she ever had* any settlement, it must have been derived from her father, Edward Bates. The referee has found, that it did not appear that Edward Bates had a residence in any other town in the state at the time, of his removal into Landgrove, about the year 1818. He says that there was evidence tending to prove that he had lived with his family in Springfield or Rockingham for four or five years prior to his removal to Landgrove. Such a residence (if proven) might have given him a settlement in one or the other of those towns under the act of 1797. But it would seem that the evidence was not of such a character, in the judgment of the referee, as to justify him in finding the fact which it had a tendency to prove; for ho says, notwithstanding this evidence : “ It did not appear that he had a residence in any other town in this state when he removed to Landgrove.” This .finding is conclusive upon the question of Edward Bates’s having had any legal settlement in any other town in the state at the time of his removal to Landgrove, and having no settlement, he could confer none upon his daughter.
The husband having no legal settlement, upon his abandonment of his wife in 1858, she was remitted to her settlement before marriage, if she had one. Royalton v. West Fairlee, 11 Vt. 438; Bethel v. Tunbridge, 18 Vt. 445.
The pauper had no settlement in Landgrove unless she had a derivative one from her father Daniel Swallow. It is conceded that he acquired a settlement in Landgrove by his residence in that town from 1814 till 1827, unless he was prevented by the warning out process under the act of 1801, which was put in evidence before the. referee. The process was good in form, but it is claimed that the service and record were defective. It was held in Townshend v. Athens, 1 Vt. 284, and has been so held in numerous subsequent cases, that the statute in a warning out process must be strictly complied with. In New Raven v. Vergennes, 3 Vt. 89, the service was made in the same manner as in this, and was held to be bad. The. objection to the sufficiency of the record was well taken. It was. not competent to show when the *379record was made by extrinsic evidence. So the settlement of Daniel Swallow was not interrupted by this process.
It is claimed that the pauper was not subject to removal on account of the interest which the referee has found that her husband had in some real estate in Winhall at the time hé abandoned his family. The referee finds that he, at that time, owned or had an interest in about twelve acres of land and a small dwelling-house; that he was owing debts when he left, and a portion of the land was set off on execution against him. It does not appear that he had a freehold estate in the land, so she did not come within the rule laid down in Londonderry v. Acton, 3 Vt. 122, and hence the only question that can arise under this branch of the case is, could this interest which he owned in the dwelling-house and land, be made available for the support of the pauper so that she could not become legally chargeable to Winhall ? The referee has found that it, in fact, yielded but a small share of what was necessary for such support, and, in the absence of any finding, or proof even, that it could have been made more productive, the fair and just inference is that, after exhausting all her available means, the town of Winhall was legally chargeable with a large proportion of her necessary support.
Judgment affirmed.