Weld v. Farmington

Yirgin, J.

The principal issue submitted to the jury was, whether Abner B. Crocker, at the time of receiving the supplies sued for, had his settlement in the defendant town. The plaintiffs did not pretend that he gained one there in Eis own right, but claimed that he derived it from his father, Hiram Crocker. Neither did they claim that Hiram ever gained a settlement in Farmington in his own right, but that he, too, had a derivative settlement there from his father, Jabez B. Crocker, who, as they alleged, acquired his by “ having his home therein, on March 21, 1821, without having received supplies as a pauper within one year before that date.” B. S., c. 24, § 1. YII.

To sustain their respective sides of this issue and the questions bearing thereon, the parties introduced a large number of witnesses, together with considerable documentary evidence, comprising records of assessments, voting lists, etc. Among other things, the plaintiffs were permitted, against the seasonable objection of the defendants, to read to the jury from the order book of Farmington, the record of thirty-six orders, of various amounts and dates from September 25, 1839 to May 10, 1851, all drawn to pay the expenses of Hiram Crocker and family, not only while he was residing in Farmington, but for expenses incurred elsewhere, and for moving them back to Farmington.

The defendants presented four requests for instructions, none of which were given in terms, but all in substance so far as they were applicable. The defendants now contend that the fourth should have been given in terms. The jury were instructed in substance that the acts of town officers bind their town only when they are acting within the scope of their duty; that the statute requires overseers of the poor to relieve a person found destitute in their town at the town’s expense; and that when thus acting their acts bind the town ; that is, that the town is bound to pay the bills, and having paid, cannot recover back.' The presiding justice then submitted to the jury these acts as matters of evidence; and after suggesting the liability of officers to make mistakes; that they may not have thoroughly investigated before acting, proceeded as follows: “ What weight will you give these acts of the overseers on the subject as to where the pauper settlement of Hiram Crocker was. Because they only pertain to Hiram Crocker. Not that they will conclude the town. They are not conclusive as to where Hiram Crocker’s real settlement was. They paid the bills on the ground that his settlement was in this town ; but it may not have been. They are simply evidence for you to weigh with all the other evidence in the case,” etc.

Forgetting their first request for instructions, the defendants contended at the argument of these exceptions that there was no question for the jury as to where Hiram Crocker’s settlement was during the twelve years covered by the orders. There was no affirmative evidence that he acquired a settlement out of Farming-ton, unless while living in New Yineyard, from 1853 to 1861. And the plaintiffs introduced this record as evidence tending to show that, for twelve years prior to 1853 at least, he was supported both in and out of Farmington by that - town. Not that the town was bound by any admission, or by the recital of any incidental fact contained in the orders, (as was contended by the plaintiffs in New Bedford v. Taunton, 9 Allen, 207) but that these orders drawn by the officers and paid by the town constituted a course of action or conduct in times past tending to show that Hiram’s settlement, during the period covered by the orders, was in Farmington. When the first order was drawn the facts with which they were dealing, and which it seems they supposed justified their action, were thirty-eight years younger than when the town was contesting their force at the trial,. We have no doubt that they were legally admissible. In fact, the question is res adjudioata in this state.

In Harpswell v. Phipsburg, 29 Maine, 313, an action to recover for pauper supplies, evidence of a former suit by Harpswell v. Phipsburg, and a settlement of what was claimed therein for the support of the same pauper, was held to have been properly admitted. Wells, J., speaking for the court said : “What is done by the officers of a town, within the scope of their authority must necessarily affect the town in the same sense as if done by the town itself. As where a person is taxed, or his name is entered on the list of voters and he is allowed to vote, it is evidence of residence where he is so taxed or votes, not conclusive, but its weight and effect are to be determined by the jury. Westbrook v. Bowdoinham, 7 Maine, 363.” After illustrating’ the rule in various ways,the opinion proceeds: “It [the settlement of former suit] was not a mere declaration made by an overseer, as was the case in Corinna v. Exeter, 13 Maine, 321, but an act done by two of the overseers. And all that was decided in Peru v. Turner, 10 Maine, 185, (cited by the defendants in the case at bar) was, that the note signed by overseers of Peru, and which contained an admission that the pauper was chargeable to Peru, was not conclusive by way of estoppel. The question made in that case was upon the effect, and not upon the admissibility of the evidence.”

So in New Vineyard v. Harpswell, 33 Maine, 193, (also cited by tbe defendants) where it was contended that the defendants were estopped to deny the pauper’s settlement to be in Harpswell, by reason of supplies having been furnished for the support of the pauper, for the six years next preceding the date of those sued for, by her brother, under a contract in writing with their overseers. But the court held that the town was not estopped, using the following language: “ It is not within the official authority or duty of overseers of the poor to create or change the settlement of paupers, and neither their acts nor their admissions to that extent can bind or estop towns. Nor will a town be estopped to contest the settlement, by the mere fact that it has furnished supplies and support for the pauper. Peru v. Turner, 10 Maine, 185. Harpswell v. Phipsburg, 29 Maine, 313.”

There is nothing in Veazie v. Howland, 47 Maine, 127, or in the Massachusetts cases cited by the defendants, inconsistent with the eases mentioned in this state.

The question has been before the court in New Hampshire several times and with the same result. While it is held there, as in this state and Massachusetts, that the settlement of paupers is settled by the statute, and cannot be changed by tbe acts of towns or tlieir officers, otherwise than in accordance with the statutes, it is also held that the acts of the selectmen in paying bills incurred by other towns for the support of a pauper, may be shown in evidence, as tending to prove any fact necessary to establish the settlement of such pauper in that town. Thornton v. Campton, 18 N. H. 20, and cases cited. Also Leach v. Tilton, 40 N. H. 473.

We do not perceive the force of the proposition that, by refusing to give tbe fourth requested instruction, tbe charge “gave the jury to understand that the request was not good law, and that they might consider not only the acts of the overseers, but tlieir declarations also; ” for the requests wore put into the bands of the presiding justice before tbe arguments to the jury, who never saw or heard that there were any requests.

So far as the motion is concerned, we see no sufficient cause for disturbing the verdict. There were many witnesses, all of whom tbe jury saw,'and most of whom, being residents of the vicinage, they must have known. The evidence is conflicting. We cannot say the verdict is wrong; for there is ample testimony, if true, to sustain it, and its truthfulness the jury have deliberately passed upon. The motion based on newly discovered evidence is not prosecuted.

Motion and exceptions overruled.

Appleton, C. J., Walton, Babbows, Petebs and Libbey, JJ., concurred.