Town of Barnet v. Whitcher

The opinion of the court was delivered by Barrett, J. This action is brought upon s. 32, c. 20, Gen. Sts. There is no question but Gauchy and wife were poor and indigent, having no visible means of support. There is no doubt that they werp carried to the town of Barnet, to get rid of the support of them by Grafton County in New Hampshire. There is no doubt that it was the intent of the person procuring them to be carried to Barnet, to leave Barnet to its chances of having them to support; and as to him, there would be no difficulty in finding the intent to charge Barnet with their support. The question is, whether the report shows that the defendant, in what he did, had the intent thus to render Barnet chargeable. We think it does not. “ The defendant, acting as county commissioner, told the selectman, Nelson, who had applied to him, to tell Gauchy and wife they could have their choice, to take fifty dollars and leave, and not be chargeable to Grafton County for a year, and have fifty dollars more at the end of the year, or be taken to the county poor-farm ; and if they chose to leave, to pay them, and the county would repay the town: and if they chose not to leave, to take them to the poor-farm.” This is all that is shown by the report to have been done by defendant prior to the carrying to Barnet. All more that was done in that respect, was done by and between Nelson, a selectman of Monroe, and Emery, another selectman of that town, and Gauchy, and Newell, who was procured by some one of the three first named (the report leaves it doubtful which) to carry Gauchy and wife to Barnet, and pay the first $50. At the end of the year the other $50 was paid by Nelson out of the funds of Monroe. The defendant and his associate county commissioners were then informed where Gauchy and wife were, and that those payments had been made, [177] and they caused the money to be paid to Monroe out of the funds of the county. It is thus shown by the proper force of the'language of the report, that from the first talk of the defendant with the selectman Nelson till the end of the year, the defendant had done and known nothing of what had taken place in respect to Gauchy and wife. What he said to Nelson in the first instance does not indicate that the defendant had Barnet in mind, or any other particular place, or that he had in mind that Gauchy and wife were to, or would be, taken out of New Hampshire, or that he supposed that they would become chargeable to any place in any town or state. The payment of the $100 to Monroe as agreed, after the year had passed, cannot operate by way of ratification, as showing and fixing the intent required by the statute to exist and co-operate with the act and the means of procuring the bringing of Gauchy and wife from New Hampshire and leaving them in Barnet. Such payment could, at most, be matter of circumstantial evidence bearing on the question of the existence of the required intent, and to be considered by the trier of the case in connection with other evidence on that question. The intent is a substantive fact to be found by the trier, in order to make out a cause of action under the statute. The payment would not operate to bind the defendant as a ratification and adoption of the acts of the persons who bargained for and made the transportation of the paupers from New Hampshire to Barnet, as might be the case in matters of agency express or implied, not involving penal liability. The intent must be made out and found in this case, the same as in a prosecution for the fine provided in the same section of the statute. ' The liability in this case ensues upon the liability to the punishment by fine. The expression is, “ and shall be further liable to any town in this state,” following immediately after and connected with the provision as to punishment by fine. So that what is requisite to render the defendant liable to the fine, is requisite in order to render him liable to pay the town as claimed in this suit. As the report fails to show that the referee found the intent, and as it fails to show facts which make the intent a necessary [178] and conclusive inference of fact to be drawn by the court, the case is not made out against the defendant. The pro-forma judgment is reversed, and judgment is rendered for the defendant.