Supreme Court of Judicature of New Jersey.
THE OVERSEERS OF FRANKLIN
THE OVERSEERS OF BRIDGEWATER.
January Term, 1846.
2. Legal settlement, in an order of removal, is equivalent to last legal settlement, and is sufficient.
ON CERTIORARI to the Sessions of Somerset county.
An order of removal of a pauper colored woman, from Franklin to Bridgewater, was made by two justices. Lavinia King, the pauper, who had become sick and chargeable to Franklin, was the child of a female slave, and was born since the 4th of July, 1804. In 1815, when an infant of about six weeks old, with her mother, she was purchased by a Mrs. Morris, and served her in Bridgewater, until arrived at the age of about fourteen years and six months, and never acquired a settlement in any other place. On appeal the sessions quashed the order of removal, because it did not set forth the age of the pauper.
J. C. Elmendorf for plaintiffs.
The question is, whether the order of removal must contain [page 568] the age of the pauper. The pauper had acquired a settlement in Bridgewater, where she had served her mistress for many years and never subsequently acquired any settlement elsewhere. Elm. Dig. 416. pl. 34. The child of a slave, but born free, she was capable of gaining a settlement; and on application for relief or removal, the proceedings, by the 8th section of the same statute, are directed to be the same as in cases of other persons, who may be chargeable, or likely to become chargeable. Elm. Dig. 417, pl. 36. The 23d section of the act of the 11th of March, 1774, Elm. Dig. 412, pl. 18, regulating orders of removal, contains no requirement that age should be inserted. The forms of orders of removal in ordinary cases, contained in approved books of precedents, do not set forth the age. Griff. Treat. 340, and note. Ewing's N. J. Just. 385. It is said, however to be material, that the age of the pauper should be mentioned in the present case, because, if not of age, she is chargeable to the master. The same objection would apply to the case of ordinary apprentices, the master being chargeable. But neither in such case, nor in the present, does the fact, that the master is liable, affect the mode of making or of drawing up the order of removal. The 23d section, already referred to, Elm Dig. 412, pl. 18, only authorizes a removal to the last place of legal settlement. The justices, therefore, in the present case, had no authority to inquire as to the duties of the master, but only where was the last settlement; and to send the pauper there. If that township can legally compel any one entitled to the services of the pauper to provide for her, it will doubtless do it; but, as between these townships, such a circumstance, if it exists, can have no operation. The pauper should be removed to the township, which is chargeable in the first instance. Upper Alloways Creek v. Elsinborough, Coxe, 389.
As to the objection, that the order does not state that her last place of legal settlement was in Bridgewater, there is nothing in this. Legal settlement is the last legal settlement. New York cases, and Johnson's Dig. ""Order of Removals."
W. Thompson contra.
The opinion of the court was delivered by[page 569]
CARPENTER J. It is not necessary that the order of removal should state the age of the pauper. The approved forms used in this state, do not require the age to be set out in the order, and the reason for such requirement in the present case fails. It was decided, in the case cited from Coxe's reports, that the order of removal of a chargeable apprentice should be to the last place of legal settlement; that the act makes no provision in regard to the removal of such person distinct from the general directions in the 23d section; and that the justices cannot make an order on the master to support such apprentice.
In regard to the second objection to this order, it is said to have been ruled in 2 Salk. 473, that legal settlement and last legal settlement are the same thing, because by every new settlement the precedent is discharged. In accordance with this authority and sound reason, the Supreme Court of New York held, on adjudicating upon an order of removal, "that the legal settlement of the pauper is in Vernon," to be sufficient. Overseers of Vernon v. Overseers of Smithville, 17 John. R. 89.
The order of the Sessions must be quashed and the order of the two justices affirmed.
HORNBLOWER C. J. and NEVIUS J. concurred.
The order of the sessions quashed.