The right of action in this case, if any exists, is given by statute. (1 R.S., part I, chap. 20, title 1, pp. 628, 629.) The provisions contained in several sections of that title, relating to "the relief and support of indigent persons," bear upon the remedy and the manner of enforcing it.
Section 58 declares that, any person who shall remove, or cause to be removed, any poor or indigent person from any county to any other county, without legal authority, and there leave such poor person, with intent to make the county to which the removal shall be made, chargeable with the support of such pauper, or who shall entice any such poor person so to remove, with such intent, shall forfeit $50, to be recovered by the overseers of the poor of the town, or the superintendent of the poor of the county into which the said poor person shall be removed; and shall be deemed *Page 149 guilty of a misdemeanor, punishable by fine and imprisonment.
The next section makes it the duty of the county superintendents to maintain the pauper so removed or enticed where he may be. It is then provided that they may give notice to either of the superintendents of the poor of the county from which the pauper was brought or enticed, informing them of such improper removal, and requiring them forthwith to take charge ofsuch pauper.
By the next section, the county superintendents to whom such notice may be directed, are required to take and remove the pauper to their county and there support him, and pay the expense of the notice, and of the support of such pauper; or notify in writing the county superintendents from whom such notice was received, that they deny the allegation of such improper enticing or removal.
The next section declares that if there shall be a neglect to remove such pauper, and notify such denial, within the time prescribed, the county superintendents whose duty it was to do so, and their county, shall be deemed to have acquiesced in the allegations contained in such first notice, and shall be forever precluded from contesting the same; and their county shall be liable for the expenses of the support of such pauper, which may be sued for and recovered, from time to time, by the county superintendents incurring the said expenses, in actions against the superintendents of the poor of the county so liable for such expenses.
The next section provides for the case of a denial of the allegations of the first notice. The county superintendents, upon whom the notice of denial may be served, are authorized, within three months, to commence a suit against the county superintendents of the poor of the county to whom the first notice was directed, for the expenses incurred in the support of such pauper; if they neglect to prosecute their action with effect, they are forever precluded from any claim against the county to whose officers the first notice was directed, for the support of such pauper.
This is the tenor and effect of five sections of the title *Page 150 above referred to, which alone have any bearing upon the question under consideration.
The intention of the law is to prevent the improper removal of indigent persons from one county, where they are chargeable as paupers, for the purpose of imposing the expense of the maintenance of such persons upon some other county; and, in case of such removal, to impose a punishment upon the individual offender, and to make it the duty of the poor officers of the county from which the pauper has been so removed, to take him back to the proper county and bear the expense of his support and removal, and in case of the refusal of the officers of the county from whence the removal has been made, to perform this duty, or in case of a denial of the obligation so to do, to afford a remedy to the county aggrieved by an action. No restraint appears to be imposed upon the locomotion of the pauper, and no right of action is given in case the pauper, of his own mere motion, removes from one county to another. His freedom to come and go at his pleasure is not restrained. The statute comes in aid to prevent, only, individual interference with the removal of the pauper, and, in that case, to continue the liability for his support upon the locality where it has last fallen.
To the same effect is the decision of the late Supreme Court in the case of Coe v. Smith (24 Wend., 341).
The referee is correct in his construction of the statute, that the intent of the persons who aided the paupers to remove from Warren county, to make them chargeable upon another county, must be established by the plaintiff to entitle him to a recovery, and from the facts, as found by him, the judgment is a correct result.
Several exceptions were taken, at the trial, to the admission or exclusion of evidence, which I will now examine.
It appeared that Griffin, one of the defendants, had advanced money to the paupers to aid their removal, and he, together with several others who had aided them in their journey from Warren to Fulton county, were witnesses at the trial, and were inquired of, by the counsel for the defendants, against the objection and exception of the opposing *Page 151 counsel, respecting their intent in causing the paupers to become chargeable on Fulton or any other county.
The statute having made the intent of the persons aiding or causing the removal to be material, the inquiry appears to be within the reason and authority laid down by this court inSeymour v. Wilson (4 Kern., 568). There the intent to defraud was by statute a question of fact, as it is in the present case. It appears to be a dangerous rule to permit a witness to give evidence as to the emotions of his mind; but with the qualification stated by the learned judge who delivered the opinion in Seymour v. Wilson, that the evidence is to be received only for what it is worth, and is not to control facts and circumstances which are proven in the case, and are not consistent with the declaration of the witness as to his secret intent, the rule may be made to work, under the careful direction of a presiding judge or referee, without essential prejudice. The application of the rule should not be extended beyond the class to which it has been applied by this court.
The referee also admitted evidence of the declarations of one of the paupers as to his property in Canada, and the relatives he had there and in other places along the route, who were able to assist him, and upon whom he relied for that purpose.
This evidence was part of the res gestæ, and tended to show what were the motives or intentions of those who removed or caused the removal of the paupers, and was for that reason admissible.
The plaintiff's counsel asked one of the paupers, who was a witness for the plaintiff, the following question: "Where did Sandford Ward and you purpose taking you and family with his team when you so left Johnsburgh?" This was excluded on the defendants' objection. The plaintiff was entitled to inquire as to what was said and done on that occasion to prove the intent of these witnesses as to the removal of the paupers, but the question went beyond that, and inquired as to the purpose of the parties. The inquiry may have related to what one or the other understood or *Page 152 believed, and had no foundation in fact. The referee properly excluded such evidence.
Philemon Griffin, the keeper of the county poor house in Warren county, testified to conversations between himself and one of the paupers (the husband of one and the father of the other of the three), in which he stated to him his property in Canada and friends along the route, and wished the assistance of the keeper in procuring money of the superintendents to enable him to remove to Canada. This evidence was objected to by the plaintiff's counsel. It appears that the witness communicated these statements to the defendant Griffin, as he was requested to do.
The evidence tended in some degree to show the motive or intent of the defendant Griffin not to be in violation of the statute, but from a charitable motive, and is really the same as if the statement had been made to the defendant Griffin by the pauper himself.
One of the defendants, George Cronkhite, was a witness for the defendants, and testified to a conversation with the pauper, in which he said he had a home and friends in Canada. There was no request to communicate this to the other defendants, nor is there any evidence on the part of the plaintiff, or allegation in the complaint, charging this witness with removing or aiding the removal of the paupers, nor does he appear to have communicated the statement of the pauper to any one. It is impossible to perceive that the evidence was in any respect material to the case, but no fact appears to have been found which was based on this evidence, and, although there was an objection and exception by the plaintiff's counsel, there can have been no prejudice to him arising from it. It was merely an immaterial fact.
The referee allowed Stephen Griffin, 2d, one of the defendants, to be recalled by the defendants to explain a statement made by him on his cross-examination after he had left the stand as a witness. This was discretionary with the referee, and cannot be alleged for error. The same may be said in respect to the refusal of the referee to permit the plaintiff to inquire of this witness, on his further cross-examination, *Page 153 whether he remembered answering a question put to him previously, that he did not know who furnished the Wards (the paupers) the means to go away with. The refusal appears to be harsh, but is not a ground for error.
The same witness was allowed to state the time and circumstances attending the making of an affidavit by himself, used for the purpose of changing the place of trial in this action, which appeared inconsistent with some part of his evidence. It left the referee to determine whether, from hurry or confusion, he had made a mistake in his affidavit. No attempt was made otherwise to vary or explain the contents of the affidavit. It might have affected the question of his credibility, but there is no rule of evidence preventing a witness from varying or even contradicting a former statement under oath on the same subject.
The same witness was also allowed to state what he meant by certain statements in a letter written by him to one Noble, to whom he inclosed a sum of money to be paid out by him for removing the paupers, in part, and the balance to be paid to the wife, also one of the three paupers. The statement of the witness was wholly inconsistent with the letter, and ought to have affected the question of his credibility unfavorably, but no authority has been cited, and I think none can be found that will preclude the witness from attempting to give a different version to his letter from that which the plain context demands. It is unlike the case of a contract which cannot be altered or explained by parol. It becomes a question only of credibility when a witness seeks to vary the context of a letter by oral explanations. The court or referee are to judge of the reasonableness and character of the explanation, but it is not to be excluded.
There appears to be no legal error occurring in the trial or judgment, and the judgment must, I think, be affirmed, with costs, although the finding of the referee upon the question of intent is wholly unsatisfactory to my mind.
Judgment affirmed. *Page 154