Inhabitants of Brookfield v. Inhabitants of West Brookfield ( 1904 )

Loring, J.

This is an action to recover for the support of a pauper. The only defence now insisted upon is that the notice sent by the plaintiff was not a sufficient notice within Pub. Sts. c. 84, § 28, in that it was signed by one of the overseers and that the statute requires that written notice shall be given by the overseers. The case is here on an exception to a refusal to direct a verdict for the defendant.

We do not stop to consider whether, taking the whole notice in connection with the subsequent correspondence and action, it ought not to be taken to have been sent originally or subsequently adopted by the overseers and so was a sufficient notice within the statute, for we all are of opinion that it is not open to the defendant to set up the objection.

The notice given was sent to the proper persons, namely, the overseers of the poor of the defendant town, and an answer was sent signed by one of the overseers of the defendant town stating that the pauper’s settlement was in the plaintiff town and on that ground refusing to accede to the request made.

Before the ease of Commonwealth v. Dracut, 8 Gray, 455, it had been held in several cases that the objection of an insufficient description of the pauper was waived by an answer of no settlement. Embden v. Augusta, 12 Mass. 307. Shutesbury v. Oxford, 16 Mass. 102. Northfield v. Taunton, 4 Met. 433. Following this rule, it was held in Commonwealth v. Dracut, 8 Gray, 455, where it does not appear in what respect the notice was insufficient, that in case of an answer of no settlement the defendant could not object to the sufficiency of the notice. The case at bar comes within those decisions.

The defendant’s argument is that the overseer's of the defendant town cannot waive the rights of the town. But by Pub. Sts. c. 84, § 29, the overseers are empowered to act for the town in this respect, and it has not been suggested that the evidence did not warrant a finding that the written statement which was signed by one of them was not in fact the act of the overseers of the defendant town. We are of opinion that such a finding was warranted by the evidence.

Exceptions overruled.