The opinion of the court was delivered by
Williams, Ch. J.This is an action for money had and received. The plaintiff is a pensioner. The defendant has received his pension money, amounting to over $1000, and claims to have received it as guardian duly and legally appointed, according to the 14th section of the statute in relation to the settlement of the poor, and to have regularly accounted therefor. The question involved and to be decided is, was the defendant legally appointed guardian ? If he was, it is immaterial to enquire whether he has properly accounted therefor. It is not found that the defendant has ever been discharged from his guardianship. The remedy for the plaintiff, if he has sustained any injury, provided the defendant is his guardian, must be under the 15th section of the statute before mentioned.
It appears that two justices of the peace, on the complaint of the select men and civil authority of the town of Chelsea, on the 26th of May, 1827, appointed or attempted to appoint, the defendant as guardian to the plaintiff. We have not the preceedings here; but it seems an objection was raised at the county court, because no evidence was offered that the complaint was made by a majority of the select men and civil authority of Chelsea, other than the recital contained in the complaint. It is, however, very certain, that if a complaint was made, purporting to be made by a majority of the select men and civil authority of the town, and the magistrates acted on that complaint, it must be deemed •prima facie to be the complaint of a majority. The mere count*44ing the number who constituted the authority may as well be done by one party as another; and when the magistrates assume to act on a complaint, purporting to be made by a majority of the authority, whoever contends that there was not a majority to authorize their action, must make that fact appear. It is also expressly stated in this case, that the plaintiff had no legal settlement in this state. The important question then presents itself, whether the magistrates had any jurisdiction, and this depends on the construction to be given to the 14th section of the statute before mentioned. To authorize this proceeding, the magistrates must have jurisdiction over the person. It is a proceeding which principally affects the person complained of, and unless he is subject to that jurisdiction ; or in other words, unless he is such a person as is contemplated in the statute, and liable on that account to be placed under guardianship, it is clear that any attempt thus to control him must be ineffectual. The words of the statute are, “That if.any person, by “ excessive drinking, gaming, idleness or debauchery of any kind, “ shall so spend, waste or lessen his or her estate, as thereby to “ expose him or herself, or his or her family, or any of them to want “ or suffering circumstances ; or shall by thus spending, wasting or “ lessening his or her estate, endanger or expose the town to which “ he or she belongs, in the judgment of the select men and civil au- “ thority of such town or a major part thereof, to a charge and ex- “ pense for the support and maintenance of him or her, or his or “ her family, or any of them ; such select men and civil authority, “ or the major part of them, shall lodge a complaint with two justi- “ ces of the peace, who may appoint a guardian or guardians to “ such person, who are to take him and family under their care, “ and take and dispose of his property, and manage the same in “ such a manner as will most conduce to the interest and advantage “ of such person, or his or her heirs.” The object of this statute is two fold. First, for the benefit of the person and his family, and thereby, secondly, for the benefit of the town, if by excessive drinking, gaming, idleness or debauchery, any person is wasting his estate, he is considered as unfit to have the management or the control of himself and family, exposes himself and them to suffering, want and poverty, and the town to the charge and expense of their maintenance. So far as the first object was to be obtained, the proceeding is a regulation of police, to place the person who wantonly neglects himself and family, under the control of those who will do what he himself ought to do. To obtain this *45object, the duty of making the complaint might as well have been required of any other tribunal, as of the select men and civil au-tbority. It might have been made the duty of any informing officer to make the complaint. But as the town who would be under obligation to provide for him and family, in the event of his being unable to take care of himself, would necessarily have an interest to prevent the spendthrift from wasting his estate, it is made the duty of the select men and civil authority of the town who may be endangered or exposed, to make complaint and take the necessary steps to enforce the regulation of the statutes.
There is nothing in the subject matter of the statute to require that this should be done by the overseers of the poor of the town where the person is legally settled. The town receives no direct benefit from the proceeding. They are only ultimately benefited by his being compelled, together with his family, to earn their subsistence, and by having his estate prudently and discreetly managed, instead of being squandered in riotous living.
The statute, however, makes use of the term, the toivnto which he belongs; and if this expression is tobe considered as equivalent to, and synonymous with the expression “legally settled,” then the objection is well taken to the proceedings had in this case.
But we find the term may as well imply an inhabitant of, or a resident in a town, as a person legally settled. The definition, then, must he gathered from the subject matter of the statute, as well as from the use made of the same expressions in other parts of the same statute.
To say that this power of appointing a guardian, can only be exercised on the complaint of the select men and civil authority of the town where a person is legally settled, would exclude from the operation of the statute, a number of persons who have no legal settlement in the state, and who certainly ought to be subject to its control, as much, or more than those who are' legally settled in the statei
The person who dwells among us, who is raining himself and family, and exposing them to wretchedness and misery, by the constant and habitual practice of those vices which are mentioned, and who must in a very short time be, with his family, relieved and supported by the town where he resides; who can look to no other town for remuneration, is, certainly, as proper a subject to be placed under guardianship, as though he had a legal settlement. The interest of community and of the town where he dwells, as imperiously demands it. The subject matter of this section would *46Iea4 us rather to say that the expression, the town where he belongs, should be considered as the town where he resides, which, in the event of his poverty, would have to contribute to his relief. On reference to the 20th section of the statute, we find that the same term is made use of in this sense.
If any poor person, belonging to any town, shall apply for relief, &c. the overseers may make application to a justice' of the peace, who, with the overseers, are to determine both as to the fact of his being in indigent circumstances, as well as the extent of the relief to be administered.
It was considered, in the case of Washburn vs. Vernon, Wind-ham county, 1832, that this 20th section applies as well to those persons who had no settlement in the state, but who were poor, for whom the town was obliged to provide, as to those who had a legal settlement in the town ; and that the term “belonging,” in this section, does not intend that the person has a legal settlement. It appears, in the case now before us, that the plaintiff has no settlement in this state. With respect to such persons, we have no hesitation in saying, that they are proper subjects for the exercise of the power contemplated in the 14th section of the statute, and that it may and must be exercised on the complaint of the select men and civil authority of the town where such person resides. If such-spendthrift has a legal settlement in the state, in a town different from the one where he resides, we are not called on to decide who must be the complainant. The construction which has been put on the 11th section of the statute in relation to persons confined in gaol, is in no way at variance with this construction, but rather confirmatory of it. It was a long time a matter of doubt, whether this 11 th section extended to persons in gaol. The apparent inconsistency of considering a person as a transient person, who was actually confined within the walls of a prison, led many to doubt, whether persons confined in gaol should not apply for relief to the overseers of the poof of the town where they resided, and from which they were taken when carried to prison, rather than to those of the town where the gaol was situated. But it is now settled that the application must be made to the overseer of the poor of the town where the gaol is situated.
The town of Chelsea, therefore, was the town which was endangered or exposed to expense, if the plaintiff while in prison, and having no settlement in the state, became a subject of relief under the statute, rather than the town from which he was taken and which could not be endangered or exposed, in conseqnence of his *47becoming a town charge while he remained in prison. If, therefore, the complaint may be made by the authority of the where such person resides, and must be made by the authority of the town who are exposed and endangered, it will follow that the civil authority, of the town where the gaol is situated, must make the complaint against all that class of persons, confined on and remaining within the limits of the gaol in such town, who have no settlement in the state. We are, therefore, fully satisfied that the magistrate had jurisdiction in this case, and that the defendant was legal guardian and must account for the property received, in some other way than in an action of assumpsit, at the suit of the person placed under his guardianship.
This view of the case must, of course, dispose of the other branch of the argument in behalf of the plaintiff. For if the defendant has expended this pension money in payment of debts rather than in support of the pensioner arid his family, and if that is a subject of which the plaintiff may complain, he must apply to the county court. But we cannot yield to the argument which has been advanced, that this pension was designed, exclusively, to be expended by the pensioner himself. It was designed, most undoubtedly, for the comfort and support of himself and family ; and when he is incompetent to expend it for. this purpose, whether from a defect of understanding, or from profligacy, it could never be supposed that the local authorities of the state might not place him under guardianship and do that for him which he could not do himself. The very fact that guardian, in this and similar cases, can possess himself of the money from the agent of the government, shows most conclusively, that although a transfer of a pension, by the pensioner himself, is not recognized ; yet a transfer, by authority of law, to the person appointed to take care of him and his family, and expend his property with discretion, is recognized. If we were to assist the plaintiff to recover this money, yet we must first repeal our statute before we could say, that the guardian should not control and expend it in such a manner as the plaintiff ought to do. The want of any proviso in the act of congress, that the pension money shall not be paid to the guardian, when one is appointed; the fact that the money is so paid, make it sufficiently evident, that the government never contemplated that the pensioner should have the entire control of the money due to him, and expend it in a manner not conducing to his comfort and support or that of his family, and subject them to the various provisions made for the support of paupers. It surely could not *48relieve this pensioner, to have this money and expend it, and leave himself and family liable, under the 17th section of the same statute, to be bound out to labor, or employed in the work house.
We have not examined the account of the guardian, because, from the view already expressed, we think it is not to be done in this suit.
The result is, that judgment must be affirmed.