Town of East-Hartford v. Pitkin

Daggett, J. The demurrer was argued on the ground that no express promise existed; but the question presented was, whether the defendants were liable on the implied promise of law arising out of the facts of the case. Three objections were urged to the sufficiency of the declaration. 1. It was said, that the allegations of the poverty and impotency of Flora, were not explicitly stated. It is difficult to see the force of this objection. It is alleged, that she was poor, destitute, and in need of the necessaries of life, and that she had no relations of sufficient ability to support her. These averments are quite sufficient. 2. It is objected, that the town of East-Hartford were not liable for her support, and therefore, they have furnished this support voluntarily, and cannot call on the defendants for a reimbursement of their expenditures. This position is worthy of great consideration, and, if true, is decisive against the plaintiffs’ right of recovery. Here I would observe, that the counsel, on both sides, insist, that Elisha Pitkin, if living, would be, and his estate since his death, is, liable for the support of this slave. There can be no doubt of this position. It was never doubted, that a master was obliged to support his slave. From the first toleration of [396] slavery in this state to the present hour, there never has existed a question on this subject. The slave was bound to serve his master; and this created a corresponding duty on the part of the master to furnish him or her support. By the statute, title 93. Slavery, it is provided, in the second section, page 428. that in case slaves emancipated, by their masters, come to want, after their emancipation, they shall be supported, by their masters respectively, their heirs, executors or administrators; and on their refusal, the select-men of the town where they belong shall provide for their support; and the town shall be entitled, in a proper action on the case, to recover all the expense of such support from the owners or masters of such slaves, their heirs, executors or administrators. In this case, it is alleged, that Flora, the slave, never was emancipated. She is not, therefore, embraced by this section. The question then occurs, is she a pauper of the town of East-Hartford? For paupers the select-men are authorized to furnish support. It is believed, that the towns would be very reluctant to admit, that all slaves, who come to want, were of their towns, and could claim support. If indeed a case should arise, where a master and the slave were both poor, impotent and unable to provide for themselves, then the town might be subjected to their support; but that is not this case. Here is no pretence of inability in the representatives of Elisha Pitkin, the defendants' testator. It is, then, precisely like the case, where the town provide for the child of a person of property, and afterwards sue him for reimbursement. Such is not a case provided for, by the statute; and of course, there can be no recovery. There is a binding obligation on the father to support his child until he arrives at twenty-one years of age. This is a duty prescribed by the law of nature. The child, in return, is bound to serve the parent until that period. On the same principle, the master is bound to support the slave, where slavery is tolerated, for the service which the slave is bound to render. The husband is also bound to support the wife, because he is entitled to her service, to her goods and chattels, and to the use of her real estate. These principles rest on the common law. The case before us, then, is one, where the common law obliges the master, if living, and his representatives, when he has deceased, to provide for and support this slave; nor is there any allegation in this declaration of any inability on the part of these executors to furnish this support. [397] I then enquire how the town of East-Hartford, became liable to support Flora, or why this corporation should have any claim for expenditures towards her subsistence? If there be any one principle of law clear of all dispute, it is, that a town is bound to afford support to those who are needy, only in the cases provided for in the statute, and in the manner therein specified. A manumitted slave, in case he needs support, may be furnished with it, by the town, and a recovery be had of the master or his representatives. That is certainly not this case. The statute also provides, that it shall be the duty of the select-men to provide for all paupers; but Flora is not a pauper, in the sense of the statute; for we have seen, that the estate of her master is liable for her support. As well might it be said, that a wife, who was cast off, by her husband, or that a child turned out of doors destitute, by his father, are paupers of the town where they belong. The principle adopted, by this Court, in Newtown v. Danbury, 3 Conn. Rep. 553. is in point. There the counsel for the town of Danbury, contended, that the town could not be liable for the support of a wife, if her husband was of sufficient ability; and the superior court adopted the idea, and submitted to the jury the question whether his property or responsibility was such, that she could be deemed a pauper; and this opinion was sanctioned by this Court. There is another case, where a town is obliged to support a person destitute, and where an action is provided for a reimbursement of the expense. That is where an inhabitant of one town becomes destitute in another town, the select-men of the latter may furnish the necessary support, and by a compliance with certain requisites of the statute, may recover the amount of the expenditures in an action against the town to which the pauper belongs. It is also by statute made the duty of certain persons standing in the relation of father and mother, grand-father and grand-mother, children and grand-children, when of sufficient ability, to provide for their relations within those degrees, who are poor, impotent and unable to provide for themselves; and in case of refusal, the select-men, or one or more of the relations, may make application to the county court, who shall order such support in the manner pointed out. But this statute is not retrospective; it does not provide for a reimbursement of any expenses already incurred. Wethersfield v. Montague [398] & al. 3 Conn. Rep. 507. Cook v. Bradley, 7 Conn. Rep. 57.) Mills v. Wyman, 3 Pick. 207. 212. If therefore, the plaintiffs had brought themselves within the statute, which they have not, still they could not recover. If these views are correct, it is unnecessary to consider the third point. Hosmer, Ch. J. was of the same opinion.