Inhabitants of Jay v. Inhabitants of Carthage , 48 Me. 353 ( 1860 )

The opinion of the Court was drawn up by

Cutting, J.

That an officer, while in office, may amend, his records, according to the facts, has been so long settled as to become, almost, an axiom of the law, subject, however, to certain limitations and reservations, as to the rights of third parties, which do not arise in this case.

A question has been raised, whether the original record was admissible, instead of a certified copy, and we have been referred to the case of Eastport v. Machias, 35 Maine, 402, where the converse of the proposition was urged by counsel; but the Court held that the doings of the selectmen “must be proved by the production of that record, or -by a transcript or duly authenticated copy of it.” An authority which is directly opposed to the party citing it, and which sustains the admissibility of the record.

The proceedings of the selectmen of Jay appear to have been conformable to the requirements of the statute, under which they were had; the insane person was legally committed to the hospital, and her expenses created an immediate liability on the plaintiffs, which they have discharged; and they now seek to recover the same of the defendants, in whose town such insane person had her settlement at the time, which they are authorized by the statute to do, “in the same manner as if incurred for the ordinary expenses of a pauper.”

To recover such expenses, it is incumbent on the plaintiffs to show that they gave written notice to the defendants, within three months after such expenses were paid, of their claim for reimbursements. Bangor v. Fairfield, 46 Maine, 558.

It should not be inferred, however, that unless the claim due at the time of the first notice was paid by the party notified, any subsequent notice is necessary as preliminary to the recovery of subsequent advancements. In the case under consideration, no payments have been made by the defendants, and, therefore, if any notice- has been legally proved, it will be sufficient to charge them for all sums expended three months prior to such notice, and all sums afterwards accruing, unless barred by the statute of limitations.

The plaintiffs contend, and have introduced evidence, if legally admissible, tending to show, that they have at four different times given such notices to the defendants, who, notwithstanding, insist that the proof is wholly defective, which proposition is to be considered.

Joshua Lake, a witness called by the plaintiffs, testified, that “the first notice was mailed at North Jay or Wilton,.in April or May, 1857, and produced by the defendant town in another action between these parties.” The original notice, (marked 3 in the report,) we understand, was produced at the trial, and thus identified by the witness, which sufficiently establishes the fact that it was received by the persons to whom directed.

But, it is urged that the notice was signed by the selectmen and not by the overseers, and therefore was not such an official notice as the statute requires.

By the ninth section of R. S., 1840, c. 5, each town, at the annual meeting in March or April, is required to choose “ three, five or seven persons, inhabitants of the town, to be selectmen and overseers of the poor, when other persons shall not be chosen to that office.” The statute of 1821, c. 122, § 3, of which the preceding section is a transcript, received a judicial construction in the case of Garland v. Brewer, 3 Maine, 198, to the effect, that when it does not appear that a town has elected any overseers, the presumption is, they had not, and the selectmen act in that capacity. This decision was cited with approbation and affirmed in Ashby v. Lunenburg, 8 Pick., 563.

It is true that, in Rowe v. Beale, 15 Pick., 123, the Court remark, that — “ The statute having provided that, in certain cases, the functions of overseers shall be discharged by selectmen ; when an act is done, which, upon the face of it indicates that it could only be done by the selectmen, acting as overseers, when there are no overseers,' there is a sufficient notice that they were acting in that capacity.” Now, upon the face of the notice under consideration, it appears that the selectmen were acting in a twofold capacity; first, as selectmen, in determining the insanity of the person and issuing the process of commitment to the hospital; and secondly, as overseers, in notifying the defendants of their proceedings and calling on them for reimbursement, thus strengthening the presumption that they were ex officio overseers.

Again, it is contended that the notice was improperly directed ; it being to the selectmen instead of the overseers in the defendant town. But the same presumption which we have already considered as arising in favor of the plaintiffs, would equally attach to the defendant town, until it was repelled by some evidence of the existence of a board of overseers in addition to that of selectmen. The plaintiffs, in thus addressing their notice, assumed the responsibility, which, so far as the testimony discloses, or rather fails to disclose, was justifiable.

It is further contended that two of the selectmen only have acted, and that there is no evidence as to the number of the selectmen chosen by the town, whether three, five or seven, as authorized by statute. Under the circumstances, this is a very sharp point raised by defendants’ counsel, and one probably not contemplated by the plaintiffs, when they agreed upon the report; and, if the point raised be successful, it will only disclose another instance of the. folly of too readily withdrawing a good cause' from the jury and the rulings of the Judge at Nisi Prius, and referring the same for a final decision to the law Court, on a report full of latent technical objections. But it is our duty to consider the question, and give the party raising it, all his legal rights and advantages, which we will now proceed to do in the language of the Court in Nottingham v. Barrington, 6 N. H., 306,— “it is objected, that the notice, of the sums expended for the support of the paupers, does not appear to have been signed by a major part of the selectmen. But, it is well known that towns in this State, very rarely, if ever, choose more than three selectmen, and we think it very safe to presume that there was no more than three selectmen in Nottingham, until the contrary is shown. We should the more readily act upon such a presumption in cases of this kind, because, if the fact be otherwise, in any case, it can easily be. shown by the records of the town. These notices are usually signed by two or three selectmen, and no one before ever thought of requiring evidence that they were a major part of the selectmen.”

And, _finally, the defendants rely upon the nonsuit in a former action as a bar to this. This proposition is equally untenable. See Lord v. Chadbourne, 42 Maine, 443; Knox v. Waldoboro', 5 Maine, 185.

Defendants defaulted for the items in account annexed, (except those of interest,) on which judgment is to be rendered with interest- from the elate of the writ.

Tenney, C. J., Appleton, Goodenow, Davis and Kent, JJ., concurred.