Inhabitants of Harpswell v. Inhabitants of Phipsburg , 29 Me. 313 ( 1849 )

Wells, J.

This was an action to recover expenses incurred for the support of Sarah Alexander, a pauper, whose legal settlement was alleged to be in Phipsburg.

No request having beeri made to the Judge, presiding at the trial, to charge the jury in any particular manner, an omission to do so in relation to certain principles, not then brought to his consideration, forms no ground of exception. If in the judgment of a party, the Judge omits to give appropriate instructions, his attention must be called to them, before any objection can be taken to the alleged omission.

It may often happen, upon subsequent examination, after a verdict has been rendered, that a party will be able to discover, that instructions, more appropriate and fit than those given, could have been presented to the jury. But if such subsequent discoveries were just cause of objection to a verdict, it might be difficult to sustain any, that could be rendered.

But we do not perceive in the present case, any want of appropriate instructions.

It is not contended, that those which were given, are erroneous.

But it is denied by the defendants, that the admission of the evidence of a former suit by the plaintiffs against them, and the settlement of what was claimed in that suit for the support of the pauper, was properly received. The settlement was made on the part of the defendants, by two of its overseers.

What is done by the officers of a town, within the scope of iheir authority, must necessarily affect the town in the same manner 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 Greenl. 363.

Overseers of the poor have the care and oversight of paupers. They are empowered by statute c. 32, <§> 52, to prosecute and defend actions relating to the same. Nothing is said in this section concerning the settlement of actions. And we must look to other portions of the statute, to ascertain whether they possess such power.

They have authority to create ” expense and do acts, as much affecting the interests of the town, as the settlement of an action, brought for supplies furnished a pauper, whose settlement is alleged to be in their town.

Upon notice that a pauper, whose settlement is supposed to be in their town, has become chargeable to another town, they may cause his removal to their own town and provide for his support.

And if such removal is not affected, and they neglect to answer the notice within two months, their town is barred from contesting the settlement of the pauper, with the town ■giving the notice, and is bound to receive and provide for him.

So too when persons fall into distress, they are required to provide for them, and if their settlement is in another town, to give notice to such town. The powers, with which overseers ■are clothed, require an exercise of judgment, by which they may charge their towns with the support of paupers.

The payment of expenses, when claimed for supplies furnished to a pauper, whose settlement they believed to be in their town, would be no greater exercise of power, than the removal of such pauper to their town and furnishing him with support. If they may incur future, why not be permitted to discharge past, expenses for the same pauper ? It may therefore.be fairly inferred from the powers and duties of overseers, that they are authorized to pay expenses incurred for the support. of one of their paupers by another town, when their town, in their judgment, is liable by law for such expenses. And the power to pay the expenses would embrace that of settling an action commenced to recover them. Belfast v. Leominster, 1 Pick. 123. The evidence of the settlement and payment, in its effect, is like an admission, that at that time and according to the circumstances then developed, the settlement of the pauper was then in Phipsburg. But it was admitted as evidence only, not as conclusive, and was open to explanation on the part of the defendants, who would have been permitted to show, if they could, that the overseers acted under an entire misapprehension as to the facts. It 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, 1 Fairf. 185, was, that the note signed by the 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.

Judgment on the verdict.