Burrell Township v. Pittsburg Guardians of the Poor.

such a settlement, in the ninth ward of the city of Pittsburg, as fixed it as the settlement of her son. The learned judge ruled this in the negative, and hence this writ of error.

The undisputed facts seem to be, that Mrs. Weir, the mother of the pauper, removed to the city of Pittsburg in 1869, from Johnstown, Cambria county, where she had resided, her sons living with her, some six months or more, and took a house in the ninth ward of the city of Pittsburg, at the rental of $3.25 per month, and lived there, keeping house, her sons with her as her family, for thirteen months consecutively, during all of which time she paid the rent as agreed until she died; and from that time her son, the pauper, became utterly imbecile, wandering about without capacity to take care of himself, until the order of removal was issued which gives rise to this controversy.

It has been repeatedly decided (3 Harris, 145, 2 Jones, 92, and 3 S. & R. 117), and cannot now be a question, that children, until they have acquired legal settlements by their own acts, remain settled where born; the settlement of their parents being their settlement. This is a deduction from the statute, for it is not so expressly provided by the act of 13th June, 1836. But the act expressly provides, that, after the death of the husband, the wife's legal settlement shall be deemed to be the place where he was last legally settled. This is equivalent to the expression, "shall be taken to be," and admits of the existence of a different state of facts, namely, a settlement acquired by the widow herself; and so it has been decided in Mifflin Township v. Elizabeth Township, 6 Harris, 17. That a widow may acquire a legal settlement thus, admits of no doubt. She may undoubtedly lease or buy real property and occupy it, being sui juris, as well as another. Still we have no reported decisions which carry a derivative settlement to her children, as a consequence of her settlement. Nor is there any statutory provision or decided case against it, in this commonwealth. Why, therefore, shall it not be so on principle?

It is the headship of the family which gives to the settlement acquired by the father the same right to his unemancipated children. Why, therefore, should not this be so of the last legal settlement of the mother, when she, by death of her husband, becomes the head of the family? I see not wherein charges upon the public would be increased by the application of the rule to an acquired settlement of the mother. She, if of sufficient ability

Burrell Township v. Pittsburg Guardians of the Poor.

like her husband if living, is liable by the statute to maintain her children, and keep them from becoming a public charge. There is no distinction in this respect. Nor is there any difference, in the process and mode by which she acquires a settlement, from that of any other person. She becomes entitled to it by a compliance with the terms of the acts of assembly, by leasing property of a certain yearly value, residing therein and paying the rent for one whole year, or by purchasing real property, occupying it and paying taxes thereon for the same length of time. In the same way, the husband, if living, would acquire a settlement for himself, and which would be communicable to his children. It is neither according to the natural nor statutory law, that a woman is to separate from her children, or they from her, on the death of her husband; nay, more, they cannot be taken from her. What good reason can there be alleged, why, when necessity, it may be, induces the widow with her family to leave the place of her husband's last settlement with a view to better her on their condition, that she shall not, on complying with the terms of the law, acquire a settlement communicable to her children? I see none, and I think there is none.

In England there is none, as has been decided in many cases. St. George's Parish v. St. Catharine's, 1 Sessions Cases, 73; 2 Ld. Raym. 1474; Fortescue, 218. So in Rex v. Barton, Turfe and Hap pesburg, 2 Ld. Raym. 1734, coram Lord HARDWICKE, C. J., and associates. It was thus held that a child may gain a settlement under its mother's settlement, after the father's death, equally as under its father while living. The mother's settlement has the same effect upon the child as the father's had. This case is to be found in Burr. Settlement Cases, 72, and in 3 Burn's Just. (374) 442. See also Rex. v. St. George's, in Hanover Square, Set. Cas. 278 There is no difference between an acquired and derivative settle ment.

Id. 482.

In Massachusetts the same thing has been held in several cases Dedham v. Natick, 16 Mass. 135, is a decision in point, and con tains a reference to others. WILDE, J., in rendering the decision of the court in that case, says: "The mother, after the death of the father, remains the head of the family. She is bound to support them if of sufficient ability; and they cannot by law be separated from her." And in concluding in favor of the derivative settlement from the mother, he remarks, that this accords with the English decisions on the subject. The same doctrine is announced

Burrell Township v. Pittsburg Guardians of the Poor.

in Great Barrington v. Tyringham, 18 Pick. 264, in Bradford v. Lunenburg, 5 Vt. 481; Hebron v. Colchester, 5 Day, 169; Norwich v. Saybrook, 5 Conn. 384; and in Lebanon v. Belure, 6 id. 45.

More cases to the same effect might be cited, but we think it unnecessary. It is not an answer to this view of the case, that the common law distinguishes between the rights of father and mother, in relation to the right of suit on account of services, or for injuries to children, growing purely out of the relation of parent and child. The cases cited by the learned counsel for the defendant in error, of Leech v. Agnew, 7 Barr, 21, and Fairmount Pass. Ry. Co. v. Stutler, 4 P. F. Smith, 375, mark this. The distinction seems to be, that as the mother is not by implication of law bound for maintenance and education of her children, while the father is, therefore she is not entitled to claim for services or injury as parent merely. But this is the difference between their parents, in relation to private parties; as to the public, in regard to their children, they are on precisely the same footing; each is bound to maintain them gainst becoming a public charge. As to the public, therefore, each should derive the same results from settlement, and communicate similar consequences to their children, where no statute or policy forbids it.

Entertaining these views, we think the learned president of the quarter sessions committed an error in reversing the order of the justices in the case, and that his order must be

Reversed.

CASES

IN THE

COURT OF APPEALS,

OF

NEW YORK.

LEONARD and another v. THE NEW YORK, ALBANY, AND BUF FALO ELECTRO-MAGNETIC TELEGRAPH COMPANY.

(41 N. Y. 544.)

Telegraph company — mistake in transmitting message—measure of damages— negligence.

Plaintiffs' agent in Chicago telegraphed to his agent in Oswego for 5,000 sacks of salt. By the carelessness of the operator, the telegram was made to read "casks;" and 5,000 casks were sent, for which there was no market in C., and which were sold at a loss. In an action against the telegraph company for damages arising from the mistake, - Held, that the measure of damage was the difference between the market value at O. and at C., together with the cost of transportation from O. to C. GROVER, J., dissentiente.

Held, also, that the failure of the plaintiffs' agent at Oswego to attempt to withdraw the shipment, on learning the mistake, after the goods had been shipped, and, as he supposed, had actually gone, but, in fact, as afterward appeared, before they had gone, was not such legal negligence as would prevent the plaintiff's recovering

Per HUNT, J. Where a telegraph company receives a message to be transmitted to a point beyond its own line and on a connecting line, it undertakes for care and attention in transmitting it over its own line, and for its prompt delivery to a competent and responsible company for further transmission. When so delivered, its liability terminates, and that of the receiving company begins. A telegraph company is not liable, as a common carrier, but only for want of proper care and attention.

NOTE. For the purpose of giving the March term complete, we have included this and the following case, reported in 41 New York. - REP.

Leonard v. The New York, Albany and Buffalo Electro-Magnetic Telegraph Co. APPEAL from the judgment of the supreme court, at general term, affirming a judgment for the plaintiffs.

The plaintiffs, at the time of the transaction, were manufacturers of and dealers in salt, at Syracuse, New York. Magill & Pickering were their agents for the sale of salt in Chicago, and D. B. Staats was their agent for shipping and disposing of salt at Oswego.

The defendants were the owners of a line of telegraph between New York and Buffalo, connecting at Syracuse with a line to Oswego, and at Buffalo with the line of the Western Union Telegraph Company, extending to Chicago.

On the 24th of September, 1856, the plaintiffs' agents in Chicago delivered to the Western Union Telegraph Company, at Chicago, to be sent to the plaintiffs' agent at Oswego, the following dispatch, and paid the usual charge for transmitting the same:

"D. B. STAATS, Oswego:

"Send 5,000 sacks of salt immediately.

"MAGILL & PICKERING."

The dispatch was sent by the Western Union Telegraph Company to Buffalo, and there delivered to the agent of the defendants. It was thence transmitted over defendants' line to Syracuse, and there delivered by defendants' agent to the Oswego line, and transmitted to Oswego. But the defendants' agent in Syracuse, in transcribing the dispatch for delivery to the Oswego line, by mistake wrote the word casks, instead of "sacks," so that it read, when delivered to the Oswego line, and by that line to Staats, as follows:

"D. B. STAATS, Oswego:

"Send 5,000 casks of salt immediately.

"MAGILL & PICKERING."

In the salt trade, at the time, the term "sack" was known and used to designate a package of fine salt, of about fourteen pounds, and the term "cask" to designate a package of coarse salt, of about three hundred and twenty pounds.

Staats received the telegram on the afternoon of September 24, and immediately telegraphed to plaintiffs at Salina as follows:

“Shall I ship Magill & Pickering 5,000 casks? Just received order."

On the 25th of September, plaintiffs answered by telegraph, as follows:

"You may ship Magill & Pickering the 5,000."