■ The opinion of the Court was drawn up by
Weston C. J.It is objected, by the counsel for the defendants in error, that this process does not lie, when the proceedings are first instituted before a justice of the peace, but that in such case, the judgment of the Common Pleas must be final and definitive. By the statute of 1821, c. 122, § 16, a writ of error is allowed, in favor of the aggrieved party, to the Common Pleas, “ in all their adjudications in the premises,” which appears to us to embrace also cases under the preceding section, which provides for complaints before a justice.
But in our judgment, the defendants in error had a legal defence to the complaint before the justice, at the time of his adjudication. The parties, which it was the object of that' process to remove, had then acquired a legal settlement in Standish, from a residence there for the space of five years together, without having received, from any town, directly or indirectly, any supplies as paupers. The previous inception of these proceedings, is not made an exception to a settlement under this mode. This statute has uniformly received a strict construction, of which Very strong cases have been cited for the defendants. To acquire rights, or to avoid liabilities under the pauper laws, the conditions, upon which the right or the immunity depends, must be consummated. It is not enough, that a town has done all in its power, and that such consummation has been defeated by the providence of God, or inevitable accident. Ware v. Wilbraham, 4 Pick. 45; Seekonk v. Attleborough, 7 Pick. 155.
A cause of complaint may exist, when made, but it may be discharged, or may cease to operate, at the time of trial. Matter, arising during the pendency of a suit, may become available in defence. Hence, pleas averring facts, happening puis darrein continuance, are legally admissible. In a suit at law, there must not only be a cause of action, when brought, but it must exist at the time of trial. If the plaintiff subsequently receive payment, or give a release, his action is defeated. Here the complaint was *95defeated, by the liability, which the law had, before trial, fixed and imposed upon the complainants.
The letter of the 12th of April, 1838, from the overseers of Gray, acknowledges the settlement of the paupers in their town, “ without regard to their having lived in Standish for more than five years.” This has reference to the period then past, and admits, what turns out to be true, that their settlement had not been changed upon that ground. It does not waive any right to set up a settlement there, which might subsequently attach, and cannot be enforced against Gray, beyond its terms. They may have further intended, by this letter, to put Standish unfairly off their guard. But if this was designed, it was not successful, for Stan~ dish preferred their complaint in a few days afterwards.
In our opinion, the error relied upon, in this case, has not been well assigned.
Judgment affirmed.