The first ground urged against the liability of the defendant town under the statute, for the sums paid by the plaintiffs for the support of Harry Frizzell, is that he was not pauper because his father was of sufficient ability to maintain him. Whether the father was or was not of sufficient ability, question of fact. Poplin v. Hawke, 8 N.H. 305; Moultonborough v. Tuftonborough, 43 N.H. 316; Litchfield v. Londonderry, 39 N.H. 247, 252.
The finding that at the time the support was furnished the father was unable from his own income to maintain himself and wife, caring for her as her condition required, and support his son, and had not then sufficient credit or property with which he could pay for the support of his son, after maintaining himself and his wife and caring for her as her condition required, without disposing of his homestead, or both his homestead and furniture, is upon the authorities a finding that as matter of fact he was not of the sufficient ability required by the statute to render him liable. P. S., c. 84, s. 12; Hollis v. Davis, 56 N.H. 74, 82; Litchfield v. Londonderry, 39 N.H. 247; Colebrook v. Stewartstown, 30 N.H. 9; Poplin v. Hawke, 8 N.H. 305.
The legal liability of a father for the support of his minor son is entirely dependent upon the statute. If the cases cited by the defendants (Hillsborough v. Deering, 4 N.H. 86, 96; Dover v. McMurphy, 44 N.H. 158,161) are authority for a different conclusion, they have long since been overruled in this state. Burns v. Madigan, 60 N.H. 197; Barker v. Hibbard,54 N.H. 539, 540; Hammond v. Corbett, 50 N.H. 501, 505; Bundy v. Hyde,50 N.H. 116, 123; Kelley v. Davis, 49 N.H. 187; French v. Benton,44 N.H. 28, 30. This finding of fact is not disturbed by the finding that William Frizzell, the father, "had sufficient property and credit to pay the expense incurred up to the time of the arrest of his son, but at that time it was apparent the expenses of his sickness would be quite large." The whole finding taken together is, in substance, that the father was not of sufficient ability to furnish the son such support as his condition demanded. *Page 402 As it appears that during the time of the relief for which suit was brought Harry Frizzell was poor and unable to support himself, and without relations of sufficient ability to support him, the town of Haverhill in which he had a legal settlement is liable in this action for the sums legally expended by the town of Plymouth for his support. P. S., c. 84, s. 13.
December 22, 1896, Harry Frizzell was arrested upon a criminal charge, upon a warrant issued by the solicitor of the county. "Every jailer shall provide each prisoner in his custody with necessary sustenance, clothing, bedding, fuel, and medical attendance, and the county commissioners shall allow him, out of the county treasury, a reasonable compensation for the support of all prisoners confined on criminal process." P. S., c. 282, s. 4. It was therefore the duty of the sheriff having Frizzell in custody upon criminal process to provide for him and furnish him necessary medical attendance. Perkins v. Grafton County, 67 N.H. 282, 283; Amherst v. Hollis,9 N.H. 107, 109. Hence, while in such custody he was not without means of support, and the town of Plymouth was under no legal obligation to support him and cannot recover of the town of Haverhill therefor. In the opinion of the majority of the court, from December 22, 1896, until February 22, 1897, upon the facts stated, Frizzell was legally in the custody of the sheriff of the county, confined on criminal process. In this conclusion Judge Pike and myself do not concur. The result is that the plaintiffs are entitled to judgment for the expense incurred prior to December 22, 1896, only.
Case discharged.
WALLACE, J., did not sit: the others concurred. *Page 403