Town of New-Milford v. Town of Sherman

Ellsworth, J. We have directed our attention, for the most part, to only one of the grounds urged for a new trial. Is the town of New-Milford prevented from recovering from the town of Sherman for the support furnished to Prout, one of its inhabitants, having themselves been instrumental in bringing him into the town of New-Milford? But we will first dispose of the other points which are of minor importance. And first, it is said, that Prout was not poor and necessitous, within the meaning of the statute; because a short time before he was in the poor-house in New-Milford, he put two promissory notes into the hands of one Jackson, (the dates and value of which are not found,) one of them nominally for 25 dollars, and the other for 1 dollar, 50 cents, on which 7 dollars, in the whole, was afterwards collected, and paid over to Prout. The judge left it to the jury to say, whether, notwithstanding these notes, — 112 — Prout was poor and necessitous—whether he had means or credit for his immediate wants or necessities, saying to them, that if he had, he was not then a pauper, to be supported. The jury have found, under this instruction, that he was in fact a pauper; and this, we think, they could find, if the evidence satisfied them. They likewise must have found, under the charge, that New-Milford was obliged to take care of him, to prevent him from suffering while in their town. A similar charge to this was approved of, in the case of Wallingford v. Southington, 16 Conn. R. 431. It is again said, that the court should have rejected the certificates of Jared Bostwick, town-clerk of New-Milford. The certificate declares, that the register of votes of that town for April, 1843, at the annual election of state officers, shows, that Prout, the pauper, voted in that town. We think the certificate was correctly rejected, because, first, a certificate is not the proper evidence of a record, but there should have been a certified copy of the record itself. Secondly, the record itself, would not be the proper evidence of the particular fact of settlement or no settlement, nor of residence even; these must be proved, by appropriate evidence, under oath. Thirdly, the record speaks of a fact after, and only after, the acquired settlement of Prout in Sherman. The plaintiff claimed no other settlement than one complete before April, 1843; so that the fact stated in the certificate, was wholly irrelevant. Again, it is said, the court should not have received the declarations of Prout, that while going towards Sherman, he was going to his home there; that is, that he spoke of and treated the house of Jotham Sherman as his home. We think this testimony is good evidence of the fact of domicil, so far as mind or conduct enters into the fact of one’s home or place of permanent abode. We come then to the main question in the case. Does the conduct of the select-men of New-Milford preclude a recovery? The language of the statute is, “and it shall be the duty of every town to maintain and support all the poor inhabitants belonging to the town, whether residing in it, or in any other town in the state.” The jury found Prout was, during the time of his support by the plaintiffs, an inhabitant of Sherman, and in want of immediate support, and that — 113 — New-Milford had given notice, in due form of law, to Sherman, in order that they might remove Prout from New-Milford, or abide the consequences. It is true, a select-man of New-Milford did aid the pauper, in the first instance, to leave the house of Jotham Sherman in the town of Sherman, in order to go to the poor-house in New-Milford; but as soon as the plaintiffs discovered, that the pauper was an inhabitant of Sherman, they endeavoured, as far as they could with safety, to get the pauper out of their town, and back to Sherman. True, they did not apply force to remove him; but they did not restrain him, or wish him to remain. In fact, after first coming there, he wandered away from the town into Sherman, and was gone from New-Milford some nine days, and returned, against the wishes and without any cooperation of New-Milford; and this was nearly two months after New-Milford had notified Sherman, that Prout was an inhabitant of Sherman, and they must remove him and provide for him. It is by no means true, that the plaintiffs detained him against his will, at any time; nor is there any pretence of it, unless it may be, for a few days, until they gave notice for his removal. The defendants, although notified, would do nothing about Prout, but left him, unheeded, though confessedly their inhabitant, to remain in New-Milford, and die, and be buried, at the plaintiffs’ expense. Here then, the plaintiffs’ claim has all the essential elements of a good cause of action; and why then shall they not recover upon it? The mistake of the select-man of New-Milford, if the defence prevails, is made to fall on his town, with extraordinary and unexampled severity. Had a stranger carried Prout into New-Milford, and left him there, it would have been no bar to a recovery against Sherman. Nor is this act of a select-man of New-Milford any more a bar than in that case, even if the select-man was really in fault; and much less so, if he laboured under a mere mistake. He intended only to discharge a duty imposed under a severe penalty for neglect—to provide for a suffering pauper within the limits of New-Milford; as it was then supposed, and honestly supposed. But strictly, as the house from which he was taken, proved to be in the town of Sherman, he had no right, as the representative of New-Milford, — 114 — to do as he did do; and cannot, therefore, bind that town by his act. New-Milford would have had a right to repudiate act, even had there been some fault on the part of the select-men. They did in fact, actually repudiate it, by giving early notice to Sherman, that Prout was one of their inhabitants, and they must provide for him. Most certainly, Prout's place of settlement was not changed, by what was done by that select-man. He still belonged to Sherman, as before; how then does Sherman avoid the expenses of supporting and maintaining him? We think, the act of the select-man, under the circumstances stated, should be laid quite out of the case: it was a sheer mistake, nor was it of any injury to Sherman; for they would have had to support him themselves; since the jury have found he was really a pauper. There was no fraud, and in truth no fault, on the part of New-Milford. What should New-Milford have done more than she has done, to avoid this burden? Is it so, that she is always obliged to support a pauper, not having a settlement in the town, because one of her select-men, through mistake, rendered aid in getting the pauper into her poor-house? This indeed must follow, unless she can give notice to the town where he belongs, and so relieve herself, thereafter, or unless, as the defendants claim should have been done, return the pauper from whence they took him. But this would have been of no real importance to the defendants; and besides, this transporting of a pauper into another town for support, is a perilous transaction, and highly penal, if not justified by the facts, as they shall be proved. We think that when there has been no fraud or real fault, on the part of the select-men, in removing and supplying the wants of a needy pauper, the question, where is the place of his settlement, and where to be supported, should not be prejudiced, by any bona fide removal, but be left untouched and undecided. As the matter stood, at the time, it was a grave question where Prout was in fact settled—where was the dividing line between the towns. This could not be certainly known until the verdict of the jury; and even then, it might not be settled truly and finally. The objections to this view of the case, urged by the counsel for Sherman, have more of sophistry than good sense. They say, a remedy for supporting a pauper, is giv — 115 — en only by statute; and that this case comes not within the provisions of the statute. But why is it not within the provisions of the statute? Every important requisite is found which the statute requires. Has a forfeiture of right resulted from a mistake? Is New-Milford any way estopped, from setting up the truth? Has Sherman thus luckily got rid of her pauper, by a mistake? Why,—nothing of this is true. New-Milford is not estopped, nor has she compromised any of her rights. True, indeed, towns may adjust and settle their differences and disputes in relation to paupers, as well as to other matters, whether of law or fact, and they may be held by such acts of settlement: but here there was no settlement of differences, real or supposed, and nothing like it at all. Let me ask, if the select-men of New-Milford, on notice from Sherman, that the pauper was in their town, and they must take him away, or pay for his support, had gone and removed him from Sherman, believing the pauper had his settlement in New-Milford; could not the latter town, on learning that the pauper had his place of settlement in Sherman, have given notice to Sherman, and looked to her for indemnity? Much more, where the select-men of New-Milford did not intend to remove the pauper from Sherman into New-Milford, but to help one of its own supposed paupers, to get from a private house into the town’s poor-house. Is it not common for the select-men of towns, upon receiving notice that one of their poor requires support, in a neighbouring town, to enquire into the facts, and then, as they are advised, go and bring the pauper within their own limits, without embarrassing the question of the place of settlement and support of the pauper, if facts are afterwards discovered, which shew the pauper’s settlement is elsewhere? Suppose the select-men of Hartford receive notice from the select-men of Windsor, that a female belonging to Hartford is there, on expense. The select-men of Hartford make enquiry, and find, the woman was born in Hartford, and, they go and bring her home; by and by, it comes out, that she is married and is not settled in Hartford. Cannot Hartford notify the town where she is settled in her husband’s right, either Windsor, or any other town, and oblige that town to defray the expenses of supporting her? And is any tendering back of the pauper necessary beyond — 116 — what is implied in the notice given? It would be going very far indeed to say, that select-men, without special authority given for that purpose, can, by their own conduct, estop their town from contesting the question of a pauper’s settlement and support, whenever it fairly arises? But it would be even more so, to hold, that bringing home a pauper, under a mere misapprehension of the boundaries of a town, should have that effect. It is further objected, that New-Milford is a volunteer in the expense of supporting the pauper in question. Did her select-men volunteer in bringing the pauper? Did they volunteer in keeping him from suffering and starvation? Did they do wrong? Was he not there and needy? At no time did they certainly know it could be proved he had a settlement in Sherman; for this depended upon the question of a town line; and hence they were not obliged, at their peril, to return him, or support him at their own expense. They gave notice to Sherman, and thus plainly told Sherman they were not volunteers; and it is puerile to hold, after this, that they were volunteers. Prout was in their poor-house by mistake, and that was all; and it was of no importance to Sherman to be informed why it was so—and the reason, if stated, would not have bettered their condition at all. Every question in their favour was open, as much so, as if he had wandered there at first, as he did afterwards. It is again said, that as the pauper was brought into New-Milford by their select-man, he was not “residing” therein, and hence not within the provisions of the statute. Being in the town, and in necessitous circumstances, is enough in other cases, and is enough in this, unless the mistake in the outset is to neutralize the subsequent continuance, especially after New-Milford had given notice to Sherman. We think the pauper was a resident in New-Milford; and that it may be properly said, that their select-men were obliged to provide for him, upon receiving notice of his suffering condition. If this is not so, then in the cases above supposed, the selectmen, who bring into town a pauper, who, they suppose, has his place of settlement in the town, but who, they afterwards find, has his place of settlement in some other town, or perhaps of the town from which they took him, are mere — 117 — volunteers in continuing to support him, though they give notice and do all they can to throw him off, except that they do not take the risk of removing the pauper into the town where they suppose he is settled, but leave the question of settlement to a judicial investigation and decision. The counsel for Sherman put this objection in a very imposing form. They ask, shall the select-men of a town steal a pauper, and bring him into their own town, and then sue for supporting him? There is no similarity between the case supposed and the one on trial. There has been no stealing, nor fault whatever; nor any perseverance in a fault. It was a mistake, without fault; and when discovered, immediate measures were taken to obtain relief from the act. In this opinion the other judges concurred. New trial not to be granted.