The town of Vernon against The town of East-Hartford

The town of Vernon against The town of East-Hartford: IN ERROR. In a bill of exceptions to the decision of the court as to the competency of evidence, and to the charge of the court to the jury, the facts stated in the charge are to be taken as part of the case. Hartford, June, 1821. To prove that a person duly appointed a justice of the peace, was qualified to act in that capacity, parol evidence that he signed a writ, and received the duty, is admissible, without producing the writ, or accounting for its absence. The inhabitants of the town of B., consisting of two parishes, voted, that they would prefer a petition to the general assembly, to divide the town into two distinct towns ; and that the poor should belong to, and be supported by, that town in which they lived. The general assembly, reciting, that “ all matters, which might arise in consequence of a division of the town, had been amicably settled and adjusted,” incorporated the inhabitants living within one of the parishes into a new town, by the name of V.—Held, that a pauper, who had lived in that.part of the town of B. recently incorporated, and was, at the time of the division, an inhabitant of J5., but was then residing, with his family, in another town, became, by virtue of such vote and act of incorporation, settled in the new town of V. THIS was an action of assumpsit, brought by the town of East-Hartford against the town of Vernon, to recover the sum of 50 dollars, necessarily expended by the plaintiffs, between the 8th of February, 1815, and the 15th of February, 1816, for the suppprt of one Richard H. Huntley, a pauper, who, during that period, resided in East-Hartford, but was, as the plaintiffs alleged, an inhabitant of Vernon. The cause was tried in the county court of Harford county, on the general issue ; and a verdict was given for the plaintiffs. A writ of error, founded on a bill of exceptions, filed by the defendants, was brought in the superior court; and was, by that court, reserved, for the advice of all the Judges. The case, as it appeared from the bill of exceptions, was as follows. In 1785, Huntley had a legal settlement in the town of Bolton ; and lived in that part of Bolton, which now constitutes the town of Vernon. In the month of December, 0f that year, he removed to Colchester, and gained a settlement in that town, under the statute then existing, by residing there with his family more than a year, without being warned to depart, unless his settlement in Bolton was preserved, by virtue of a certificate which he carried with him. It was in these words : “ Bolton, December 12th, 1785. To the authority in, and select-men of, the town of Colchester. These certify, that we, the subscribers, do acknowledge, that Richard H. Huntley, with his family, are inhabitants in the town of Bolton ■: Witness our hands—and are ready to receive them, whenever returned. Samuel Carver, Justice of the Peace. Saul Alvord, ') m T • f Select-men.” Abner Roomis, 3 This certificate was lodged with the town-clerk of Colches-ter, according to law. Whether it was legally signed—that is, whether it was signed by a majority of “ the civil authority-in and select-men of the town”—was the principal point in controversy. No question was made, with regard to the select-men. The defendants claimed, that there was at least one justice of the peace in the town, duly qualified, besides Samuel Carver, viz. Ichabod Warner. It was proved, that Warner was appointed a justice of the peace, by the general assembly, at their session in May, 1.785. To prove that he was duly qualified to act in that capacity, at the date of the certificate, the defendants read in evidence a record of the duties which were received by him, between the month of May, 1785, and the month of May, 1786; by which it appeared, that he received from William Payne a duty of two shillings, on a writ returnable to the county court of HartfordEast-Hartford county. The defendants also proved, that the records and files of the county court of Hartford county had been diligently searched for the writ on which such duty was paid, and it could not be found ; that this writ was directed to an indifferent person to serve, though the name of that person the witness could not recollect ; and that the action commenced by such writ was settled, before the sitting of the court to which it was made returnable. The defendants then offered to prove, by the oath of Payne, that he had paid the duty to, and Prayed out the writ from, justice Warner, in the month of October, 1785. To the admission of this testimony, the plaintiffs objected ; and the court rejected it. The plaintiffs further offered in evidence, sundry votes of the antient town of Bolton, passed at a town-meeting on the 18th of April, 1808, among which were the following: “ Voted, to petition the general assembly, in May next, to divide the town of Bolton into two distinct towns, by the parish line. “ Voted, that in case the town shall be divided, the whole of the record books shall belong to the first society, which shall still retain the name of Bolton ; that the weights and measures shall be equally divided between the towns, according to their just Value ; that Hannah Goodrich, one of the present poor, shall belong to the new made town, and Eunice Marshall and James Fowler shall belong to the old town, or Bolton ; and such as shall become poor hereafter, shall belong to, and be supported by, that town, where they did or shall live ; and that the division of the poor and the expense, shall take place at the time the town shall be divided; and all debts and contracts shall be equally paid, by each town, and taxes already granted shall be collected and disposed of according to the original design.” The plaintiffs further offered in evidence the act of th§ general assembly, passed in October, 1808, incorporating the town of Vernon, which, referring to the agreement or arrangement made by the antient town of Bolton, in the foregoing votes, stated, by way of recital, that “ all matters, which might arise in consequence of a division of said town, had been amicably settled and adjusted and then provided, that “ the inhabitants living within the limits of the society of North-Bolton shall be, and are, incorporated into and made a town, by the name of Vernon, and that they and their successors, forever, inhabitants within said limits, are, and shall remain, a town, and body politic, with the rights, privileges and immunities to other towns belonging.” To the admission of these votes, and the act of incorporation, as well as the certificate before mentioned, the defendants objected, on the ground that they did not, by law, affect the right of the plaintiffs to recover money, expended in support of Huntley, from the town of Vernon. But the court overruled the objection, and admitted the evidence in question. The defendants also prayed the court to instruct the jury, that if they should find the facts, which the plaintiffs claimed to have proved, to be true, by the statute law of the state then in force, the town of Bolton only, and not the town of Vernon, was liable. The charge given by the court to the jury, so far as it related to any points now in controversy, was as follows : “ The certificate produced, appears to be signed by Samuel Carver, as a justice of the peace, and two select-men. The defendants contend, that the names, which appear on the certificate, do not comprise a majority of the civil authority then in. the town. It is admitted, that in May, 1785, three justices in that town were appointed by the general assembly. The great difficulty is, to ascertain whether two of them, viz. Icha-bod Warner and Elijah White, were qualified as justices. The evidence is all before you ; and you are to decide upon it. If you shall find, that there were two or more qualified justices in Bolton, on the 12th of December, 1785, it will follow, that the certificate was not duly executed ; and that will make an end of the case in favour of the defendants. But if you shall find, that, at that time, there was but one qualified justice in the town, it will follow, that the certificate was duly executed* and consequently, that Huntley remained a settled inhabitant of Bolton, until the division of the town. An agreement or vote of the inhabitants, and the act of the general assembly incorporating Vernon, have been given in evidence to you, from which the plaintiffs claim, that Vernon became liable for Huntley’s support. The defendants contend, that these documents can have no such effect. The court are of opinion, that by virtue of them, Vernon became liable for the support of the paupers, who resided within its present limits. If, then, you find, that the certificate was executed by a majority of the qualified justices and select-men of Bolton, at the time of its date, you will find for the plaintiffs ; if otherwise, for the defendants.” Edwards and I. Perkins, for the plaintiffs in error, contended, 1. That the testimony of Payne, that Ichabod Warner signed a writ for the witness, and received from him the duty on it, in the month of December, 1785, shortly before the date of the certificate, ought to have been received, as evidence of official character. First, it was proper, as primary evidence. That the official acts of a magistrate, duly proved, ate evidence of official character, will not be controverted. The question, then, is simply, whether the signing of a writ, and the taking of the duty, may be proved by parol. These are strictly matters in pais. No law requires a magistrate to make a record of them. The entry upon the writ is not conclusive : the facts might be contradicted, if the writing were produced : a fortiori they might be proved, m the absence of the writing. It is to be kept m mind, that Warnet’s appointment had been previously established, by the record of the general assembly. How could we prove, that he exercised the functions of his office, but by the testimony of witnesses, who saw'him act ? But, secondly, if the evidence offered was incompetent as primary evidence ; yet, as the loss of the writ was satisfactorily proved, there was a sufficient foundation laid for the introduction of secondary evidence; and, as such, the evidence in question ought to have been received. The court did not reject it, on the ground of any deficiency in the proof of loss. 2. That if the certificate was legally signed, it bound Bolton only, and not Vernon. The duty of a town to support its poor, is, in all cases, created by positive statute. Aside from this, those who live on one side of a town line, are under no greater obligation to contribute to the relief of an indigent person, than those who live on the other side. But the statute under which the certificate in question was given, imposed the duty of support upon the town—not the territory within cér* tain limits, but the corporation—which gave the certificate. This corporation was Bolton. Vernon gave no certificate. Thai, the votes passed in Bolton town-meeting, and the act of the general assembly incorporating Vernon, did not render Vernon liable in this action. In the first place, the votes did not constitute an agreement, on which a right of action could accrue in favour of any one. There was but one party to the transaction. Strictly, this was the act of the corporate body alone. But if viewed less technically, it was, at most, but an expression of the minds of the inhabitants residing in different parts of the town, furnishing to the general assembly ground of policy ior the proposed division. In this light it was evidently considered, by the general assembly. Secondly, if it was an agreement, to which the inhabitants of the two parishes in the town were parties; so that one party ; might have a right of action against the other ; still such right :; of action could not be transferred to East-Hartford. It would be going very far to make these votes negotiable paper.— Westborough v. Franklin, 15 Mass. Rep. 254. ⅜ Thirdly, the act of incorporation did not render Vernon liable for Huntley^s support. No persons were made inhabitants of Vernon, vigore statuti, except “ the inhabitants living (i. e. in 1808)-within-the limits of the society of North-Bolton.” But Huntley did not then liye there ; nor had he lived there, within a period of more than twenty years. By the mere act of incorporation, none but actual residents are constituted members. Windham v. Portland, 4 Mass. Rep. 384, Bath v. Bozedoin, 4 Mass. Rep. 452. • T. S. Williams &nd W. W. Ellsworth, for the defendants ⅛ error, contended, 1. That the testimony oí Payne was properly rejected. In the first place, it does not appear from any fact stated in the bill of exceptions, that this testimony was relevant. The bill of exceptions does not shew, that Warner lived in the town of Bolton ; and if he did not, any testimony to shew, that he acted as a justice of the peace, must have been irrelevant. Secondly, the testimony in question was, in its nature; inadmissible. The signing of a writ is necessarily in writing ; and the law requires the payment of a duty to be certified in writing. The paper which contained these writings, was the best evidence : and its existence precluded parol testimony. Phill. Ev. 162. But it is said, that this paper was proved to be lost. The bill of exceptions discloses no such fact. does, indeed, state certain evidence, from which the jury might, perhaps, infer a loss; but the fact of loss it does not state ; and this Court can take notice of no fact, which does not appear upon the record. 2. That the only effect of the certificate was, to preserve the settlement of Huntley in Bolton; to continue the relation, which then subsisted; and to place him upon the same footing as to settlement, notwithstanding his removal, as other inhabitants of the town. In this situation he would have remained, had not something further taken place. 3. That by virtue of the votes of the inhabitants of ancient Bolton, and the act of the general assembly, recognizing those, votes as a valid agreement between the two divisions of the town, and incorporating the inhabitants of one division into a new town, Huntleys settlement was transferred from Bolton to Vernon. Mansfield v. Granby, 1 Root, 179. Hebron v. Marlborough, 2 Conn. Rep. 18. In an act relating to “ the admission ot' inhabitants in towns,” it was provided, “ That the inhabitants of any town within this state, may, for the better support of himself or family, have liberty to remove, with his family, into any other town in this slate, and continue there, without being liable to be removed, provided such person procure a certificate in writing, under the hands of the civil authority in and select-men of the town, from whence he removes, that he is a legal inhabitant in that town, and lodge the same with the clerk of the town to which he removes : And in case such person, or any of his family, stand in need of relief from said town, he or they shall be supported at the cost of the town where such person was settled, and obtained a certificate as aforesaid, and may be returned back to such town ; provided such person hath not been admitted an inhabitant, or gained a settlement, as before in this act is provided, in any other town, after such certificate was given.” Stat. Conn, p. 104. edit. 1784. [MAJORITY — Hosmer, Ch. J.] Hosmer, Ch. J. The town of Easi-Ifari/brdbrought their suit against Vernon, which formerly was part of the town of Bolton, to recover a sum expended for the necessary maintenance of one Huntley, whom they claimed to be an inhabitant of Vernon. The first question in the case relates to the validity of a certificate, dated the 12th day of December, 1785, declaring Huntley to be an inhabitant of Bolton, and signed by Samuel Carver, a justice of the peace, and two select-men. The certificate was directed to the select-men of Colchester, in which town Huntley resided, wdth his family, more than a year, without being warned to depart; and this, by the law then existing, gave him a settlement in that place, if the certificate were not legally signed. On the part of Vernon, it was claimed, that, at the date of the certificate, Ichabod Warner, Esq. was an inhabitant of Bolton, and a justice of the peace, duly qualified; and if such were the fact, it is not denied, that his signature was necessary to give authenticity to that instrument. It appears, that Warner had been appointed a justice of the peace, the^Spiing preceding the date of the certificate ; and to prove that he was duly qualified to act, one Payne was offered as a witness, to testify that he paid a duty to Warner, on a writ issued in the month of October, 1785. To the admissibility of Payne^s testimony, the plaintiffs objected, that it was both irrelevant and incompetent; and by the court it was rejected. To shew the irrelevancy of the evidence, it was said, it did not appear, that Warner, at the date of the certificate, was an inhabitant of Bolton; and this undoubtedly is true, if the court may not assume this fact from the charge given to the jury. But the charge is part of the bill of exceptions, signed by the judge ; and every part of the same bill of exceptions, is equal evidence of the facts apparent upon it. It is not like two distinct bills of exceptions, which have no reference to each other; but it is one indivisible act, and to receive a construction from a connected view of all its expressions. Now, from the charge, Warner appears to have been an inhabitant of Bolton; and whether he was a justice of the peace duly qualified, was the only question agitated. This subverts the objection made on the ground of irrelevancy. The supposed incompetency of the evidence, is founded on the deficiency of proof to establish the loss of a writ, on which the reception of the duty was certified ; and if the admission of the evidence depended on this act, I should be of opinion that it could not be received. There is enough, perhaps, appearing on the bill of exceptions, from which the loss of the writ might have been inferred, by the court below; but it is not competent for this court to deduce the inference, unless it is strictly a necessary presumption ; and clearly it is not. It is requisite, then, to maintain the proposition, that the offered testimony is, in its nature, primary, and receivable, whether the writ is, or is not, in existence. The payment of a duty on a writ, is an act extrinsic of the writ, which may not have been certified. The act was complete, on the payment of the duty, and admitted of any evidence to substantiate it, whether it were the justice’s certificate, or the testimony of witnesses.— Analogous to the certificate of matrimony by a justice, or the recording of births and deaths, to perpetuate the evidence of them, it may be proved by writing, or by parol. It results, then, that the evidence offered should have been admitted. As to the other point made in the case, relative to the legal effect of the incorporation of Vernon, on the settlement of the pauper, I am of opinion, that he became settled by it in Vernon. He was an inhabitant of Bolton anterior to its division, living in that part of it afterwards incorporated into the new town. He was not, in fact, residing in Vernon, at the time of its incorporation ; but although in some other town, it appears that he has not acquired a new settlement. It is no strained interpretation of the act of the general assembly, which declares that the inhabitants living within the limits of North-Bolton, shall constitute the town of Vernon, to extend it to those, who there resided before the act of incorporation, although, at the date of the act, they were not actual residents. This was explicitly determined in the case of the town of Mansfield against the town of Granby, 1 Root 179., from which period, so far as I am informed, in perfect accordance with this decision, the point has been considered as settled. A decision of the supreme court, on a point even of doubtful construction, made more than thirty years ago, and since uniformly acquiesced in, and followed, is too authoritative to allow of a recurrence to first principles. I would advise the superior court, that there is manifest error in the judgment complained of. The other Judges were of the same opinion. Judgment to be reversed.