The town of Lyme against the town of East-Haddam

The town of Lyme against the town of East-Haddam : IN ERROR. A bill of exceptions bringing up ail the evidence in the cause, for the purpose of reviewing the decision upon the matters of fact in controversy, is not allowable. Where it appeared from the evidence introduced by the plaintiff, in an action for the support of a man and his family, claimed to be paupers, that the man was in good health and capable of earning four shillings a day ; but that he was wholly destitute of property, had been turned out of his former dwelling place, and had no other place to go to; and that the woman whom he lived with as his wife, though she was not legally such, and his children by her, were sick and under necessitous circumstances; it was held, that these facts conduced to shew, that the man was a pauper. Where there is no justice of the peace in either of the towns wherein the plaintiff or defendant dwells, the plaintiff may bring his action before a justice residing in one of the towns next adjoining the place of his abode, although in a different county, especially if it be in the county wherein the defendant dwells. And if such action, after being opened for trial at the residence of the justice, be adjourned into the defendant’s town, in the same county, for the examination of witnesses, and then adjourned back to the residence of the justice, where final judgment is rendered for the plaintiff; the judgment will not, by reason of such proceeding, be erroneous. This was an action of assumpsit for the support of Lewis Matson, Cynthia Matson, his wife, and their four minor children, brought, originally, by the town of East-Haddam against the town of Lyme, before Samuel A. Peters Esq., a justice of the peace for New-London county, at his dwelling-house in Colchester; there being no justice of the peace in either of the towns of Lyme or East-Haddam, who could lawfully try the cause ; and the town of Colchester, in which justice Peters resided, being one which next adjoined the town of East-Haddam, the plaintiffs in this suit. At the time and place mentioned in the writ, viz. at Col-chester, on the 18th of March, 1839, justice Peters held his court. The parties appeared ; and the defendants pleaded the general issue. On motion of the defendants, the court adjourned to the 3rd Monday of April, 1839, to be held at the South school-house in Hadlyme society, in the town of Lyme. The court was held at that time and place, according to the adjournment. The parties appeared, and were heard at large, with their evidence, and by their counsel. The court then adjourned the cause to the last Monday of May, 1839, to be held at Colchester. It was then and there held ’ accordingly. ^ * On the trial, it was proved and admitted, that Lewis Mat-son was born in Lyme, about the year 1790, and continued to be an inhabitant of Lyme to the year 1838, unless he acquired a settlement in East-Haddam subsequent to Mar chi 1820 ; that in February, 1820, he was lawfully married to a woman by the name of Eunice Crosby; that in April, 1824, said Eunice being still living and his lawful wife, he married a woman, by the name of Cynthia Smith, who was not an inhabitant of the town of Lyme, and never became an inhabitant thereof, unless by her connexion with Matson; that about the year 1830, said Eunice died ; that in November, 1837, he married said Cynthia over again; that said Matson, Cynthia and their four children, whom he had had by his inter-marriage with her, having been turned out of the house where they lived in Haddam, all went into the house of Jonathan Selden in East-Haddam, in July, 1834; that said Cynthia was then sick, poor and under necessitous circumstances, and so continued for a number of days ; that said four children were also poor, destitute and under necessitous circumstances ; that said Lewis Matson was then also poor, and wholly destitute of property, and had noplace to live in, and no where to go to. The plaintiffs introduced two witnesses, Jonathan Selden and Richard S. Pratt. The former testified, that in July, 1834, Lewis Matson, and his wife Cynthia, and their four children came to his house in East-Haddam, having been turned out of the house where they had lived in Haddam; that after they had continued at the witness’s house three or four days, he notified the select-men of East-Haddam, that they were there, and that said Cynthia was sick ; that Richard S. Pratt, one of the select-men, said, the witness must take care of them, and then he wrote a letter to the select-men of Lyme; that said Lewis, Cynthia and their four children^ staid at the witness’s house nine days, during which time, he supported them, and the select-men of East-Haddam paid him, for such support, six dollars, in a town order. The witness then added: “ Said Lewis sometimes came out and helped me load hay. 1 never asked him to help me : he was not sick : he never was a stout man : he could not do so much ES a common matl: be might then have earned four shillings a day ; but his attention was taken up in taking care of his wife.” Pratt testified as follows: “ In July, 1834, Jonathan Selden notified me, then a select-man of East-Haddam, that Lewis Matson and his family were at said Selden’s house ; and he requested me, as select-man, to remove them. I told Selden, he must take care of them. Selden came again, and notified me ; when I wrote a letter to the select-men of Lyme, and put it in the post-office in East-Haddam, giving them notice that said Lewis Matson, Cynthia and children were sick, and on expense in East-Haddam, and that East-Haddam looked to Lyme for legal charges. The select-men of East-Haddam paid said Selden six dollars, in a town order, for supporting said Lewis Matson and his wife and children.” This was all the evidence tending to show that Matson and his family were paupers, at the lime this support was furnished to them. To the admission of this evidence the defendants objected, claiming that it was inadmissible, for the purpose of charging them for such support, on the ground that said Cynthia and children were not inhabitants of Lyme, when the support was furnished ; and that if said Lewis was an inhabitant of Lyme, he was not a pauper. The court admitted the evidence ; and thereupon found, that said Cynthia and said four children were paupers ; that the first marriage W'ith her in 1824 was void, and that said four children were, consequently, illegitimate ; that said Lewis was a pauper of the town of Lyme, when the support was furnished ; and that the defendants were liable for the .support furnished to him, and for that only ; and rendered judgment accordingly. The defendants filed a bill of exceptions, and thereupon brought a writ of error in the superior court. That court affirmed the judgment of the justice ; and the defendants thereupon, by motion in error, brought the record before this court for revision, assigning the general error. ■Strong and McCurdy, for the plaintiffs in error, contended, 1. That the evidence introduced by the plaintiffs, on the trial, was irrelevant and inadmissible. It not only did not conduce to shew that Matson was a pauper, but, on the contrary, it proved, that he was not one. He could earn four shillings a day, which would be 200 dollars a year. This was equiva- , lent to a fund of that amount in his hands. In Stewart Sherman, 4 Conn. Rep. 553., Wright, the person claimed to be a pauper, held a note against a responsible man for 96 dollars; and it was held, that so long as he had this property, he could not be a pauper. No deduction ought to be made from the fund in this case, on account of Matson's connexion with Cynthia and her illegitimate children. A man who has enough for his own support, cannot claim aid from the town because he wants to devour his living with harlots. This is creating “ a factitious necessity,” of the worst sort. Backus v. Dudley, 3 Conn. Rep. 572, 3. 2. That this writ of error was not exceptionable as bringing up the whole case. We claimed, on the trial, that the testimony of Selden and Pratt was irrelevant, and, on that account, inadmissible. We were obliged to state this evidence, and the whole of it, in our bill of exceptions. Our objection still, is, to the competency of the evidence ; not to its sufficiency mare'y. S > far as this question is concerned, it is immaterial whether the evidence brought up, is all, or only a part of the evidence introduced. 3. That the cause was coram non judice. In the first place, it was not cognizable by a justice residing in Colches-ter ; that town being in a different county from the place of the plaintiff’s abode. By “ one of the towns next adjoining the place of his [the plaintiff’s] abode,” is meant a town in the same county. Secondly, if the justice could try the cause in Colchester, he could not adjourn into Lyme for trial. The adjournment back into Colchester to render judgment, did not cure the irregularity. Bulkley, for the defendants in error, contended, 1. That the testimony objected to, conduced to shew that Matson WaS ⅞ PauPer’ This was a question of fact, to be determined by the jury, from all the circumstances of the case. The court cannot know judicially, that four shillings a day is an adequate support for a man and his family ; for it appears that Matson had a family in fact, which he was morally, if not legally, bound to provide for. 2. That the bill of exceptions was objectionable as bringing up the whole case. Watson v. Watson & al. 10 Conn. Rep 75. Picket v. Allen, Id. 146. Wadsworth v. Sanford, Kirby 456. McDonald, v. Fisher, Id. 339. 1 Sw. Dig. 771. 3. That the justice had jurisdiction, and exercised it properly. In the first place, as there was no justice in either of the towns of East-Haddam or Lyme, who could lawfully try the cause, the plaintiffs properly brought their suit before a justice in Colchester, that being one of the towns next adjoining to the place of the plaintiff’s abode. Stat. 41. tit. 2. s. 22. The suit need not be brought in the county in which the plaintiff resides. The objection to the adjourned court in Lyme, comes with an ill grace from the party on whose motion and for whose accommodation the adjournment was made. But there is no solidity in the objection, come from what quarter it may. A justice of the peace is a county officer, and can exercise his office any where in the county. Kingsbury v. Phipps, 2 Root 357. 1 Sw. Syst. 105. He may try a cause wholly, in another town than that in which he resides. Humphreyville v. Perkins, 5 Day 117. Butin the present case, the suit was commenced and the judgment rendered in the justice’s own town. Bulkley, for the defendants in error, here objected, that as this had not been specially assigned for error, the court would not hear argument upon it. On the other side, it was insisted, that the general assignment, in this case, was sufficient: that the grounds on which the court below rendered the judgment complained of, cannot be enquired into here, and need not be stated. The court decided, that the exception was well taken, and. that the counsel for the plaintiffs in error could not be heard on this point. They then moved to amend their assignment of errors; which was allowed conditionally; but the conditions were not insisted on, by the oppositeparty; and the argument proceeded. [MAJORITY — Church, J.] Church, J. 1. The bill of exceptions in this case, is nothing more than a recapitulation of the whole evidence, for the purpose of inducing the court to determine, whether upon the whole, the justice of the peace was not mistaken in his conclusions. This way of presenting questions of law for review, has been repeatedly reproved, by this court. It was urged, that from the facts stated, they were entirely irrelevant, and inadmissible as evidence to prove, that Matson and his children were paupers. Whether they were paupers, was a question of fact, not of law. If, as was claimed, by the defendants below, Matson was a person in good health, and capable of earning three or four shillings per day; this does not prove he was not a pauper, unless it also appeared, that this sum was sufficient for the support of himself and his family in East-Haddam. It appears from the facts stated in the bill of exceptions, that Matson was poor himself, wholly destitute of property, and “ had no place to go to.” And his wife also and his children, for whom, at least, he was under a moral obligation to provide, and who were entirely dependant upon him for support, were sick and under necessitous circumstances. Surely, these facts conduce to prove, and almost conclusively, that Matson was a pauper. 2. It is claimed, that Justice Peters had no jurisdiction of this cause. By the general provision of the law, an action cognizable by a justice of the peace, shall be brought and tried in the town where either the plaintiff or defendant dwells. This is intended to promote the convenience of suitors, and prevent vexation. But if there be no justice of the peace in either of such towns, who can lawfully try the cause, then the plaintiff may bring his suit before a justice of the peace, “ in one of the towns next adjoining his abode.” This is intended to secure impartiality. The statute law on this subject ought to be so construed as to effect both of these objects. As the plaintiff, in the latter case, may bring his action before a justice of the peace in an adjoining town, it follows necessarily, that the justice may try it there. The writ is returnable there, the incipient proceedings under it must be had there, and the justice cannot be compelled to go abroad to try the cause. But as a justice of the peace is a county office^ we see no objection to his adjourning his court, if he please, that the cause may be tried in the town where one of the parties live, if within the county, for which the justice is appointed, and thus carry into effect both of the before mentioned objects of the statute. Indeed, we suppose this principle was recognized, by this court, in the case of Humphreyville v. Perkins, 5 Day, 117. Both of the parties in that case resided in the town of Woodbridge; but that town being interested, the suit was brought before a justice of the peace in the adjoining town of New-Haven ; but by reason of other statute provisions affecting that case, it could not be tried in New-Haven; and it was holden, that the New-Haven justice should have tried the cause in Woodbridge. But this could not ^ave keen done, if by law the justice could not have ad-his court to that town : and it should have been ad- . , ’ judged to be a case unprovided for by law. g_ jt },as been further objected, in the present case, that the suit should have been brought before a justice of the peace in the county where the plaintiff resided ; whereas the plaintiff in this case, sought a justice out of his own county. We see no objection to this. The cause Was still within a county where one of the parties dwelt; and would have been, and in fact was, when transferred to a higher court. The objection to the jurisdiction of the justice cannot be sustained. We. advise, that the judgment of the court below be affirmed. In this opinion the other Judges concurred, except Waite, J. who gave no opinion, being interested, as an inhabitant of the town of Lyme. Judgment affirmed.