107 Mass. 419 | Mass. | 1871
A person who was born on the eighth day of September 1852 would become of the full age of twenty-one years if he should live to the seventh day of that month in 1873. He would be entitled to be considered as having attained his majority at the earliest minute of that day. It was not in the power of the overseers of the poor, therefore, so to bind out the minor in this case as an apprentice, that he could lawfully be held to service as such for any appreciable portion of that day. If the indenture necessarily implies ‘ an intent on their part to do so, we should be obliged to say that, in so doing, they exceeded' the au thority given them by statute, and that the act of binding out the minor was void and of no effect. It has been well said that the authority given to overseers of the poor to interfere in the domestic relations of families, and to take children from their parents to be bound out as servants to strangers, is' a high and arbitrary, if not dangerous, power, in favor of which nothing should be presumed, and everything required for its lawful t xercise must be shown affirmatively. We think however that the obvious intent in this case was only to bind the apprentice for the term of his minority. It was not necessary to fix the exact date of its termination, and, in the absence of any imputation of bad faith,
The overseers, in making the indenture, professed to be acting in an official capacity, and in discharge of a public duty. The court was right in ruling that the recital in the instrument was primé facie evidence that Samuel Hayden was a poor person lawfully settled in Shelburne, and actually chargeable thereto; and it is immaterial that the instrument was one to which the defendant was not a party. Reidell v. Morse, 19 Pick. 358, 360. It was not conclusive, neither did it shift the burden of proof. And it was discretionary with the court, and therefore afforded no ground of exception, that after hearing the defendant’s evidence upon this point the plaintiff was permited to put in new evidence, by way of rebuttal, of a kind which might have been offered in chief and as part of his original case. And upon the question whether on the fifth day of April 1861 Hayden was chargeable upon the town, as it was admitted that he had been for almost a year before that date, the jury were instructed that if, when he removed to another town, the apprentice and two other children of the family remained, with their father’s consent, a charge upon the town, the apprentice until five days before and the other two until two months after the making of the indenture, they ought to find that on that day the father was chargeable upon the town. Relief furnished by the town with his consent to some of his minor children, he not being able to support them himself, is re-fief to him ; and the fact that he had undertaken the support of himself and another part of the family, dependent upon him, would not alter his legal position. He would still be a person receiving aid and support from the public under the provisions of the statutes for the maintenance of the poor. Wilson v. Brooks 14 Pick. 341. Taunton v. Middleborough, 12 Met. 35. It is tr je
With regard to the defendant’s offer to prove that he had paid the boy for his labor, we think that at that stage of the case it was rightfully rejected. It was not offered in connection, as we understand the report, with any evidence tending to show that the plaintiff had abandoned any of his rights, or had been wanting in due and reasonable exertion and diligence to reclaim the apprentice. If he had not lost his right to the services of the apprentice by any fault of his own, the fact that a stranger, who had had the benefit of them, had paid a party who had no right to the payment, would be immaterial. There might be circumstances from which the jury might very properly infer that the plaintiff had abandoned the right to hold the apprentice. The propriety of such an inference would depend on what the plain tiff knew, or had the means on reasonable inquiry of knowing, as to where the apprentice was and what he was doing. If the plaintiff knowingly suffered the apprentice to make and perform contracts for service, or if the plaintiff, knowing where he could be found, made no efforts, or neglected opportunities, to reclaim him and hold him to his service, he could not maintain his action, — in other words, his relinquishment of all right to hold the apprentice under the indenture could be proved by circumstantial evidence. Mere payment by the defendant to the apprentice without the knowledge or default of the plaintiff would not affect the question.
The result is, that we find no error in the rulings of the prep-siding judge; and therefore the
Exceptions are overruled.
