Inhabitants of Brewer v. Inhabitants of East Machias

27 Me. 489 | Me. | 1847

The opinion of the Court was prepared by

Sherley J.

The original declaration contained only a count on an account annexed “for supplies furnished Levi Huntley and family.” The items of the account were then stated. An amendment was permitted in the district court, stating in a new count such facts, as would render the defendants liable to pay the expenses incurred for the support of Huntley and family, as paupers having their 'legal settlement in the town of East Machias.

1. It is insisted, that this amendment introduced a new cause of action, and that it ought not therefore to have been permitted.

No other or different items were claimed by the amended, than by the original declaration. The cause of action was the supplies furnished to Huntley and family, as exhibited in each count. The plaintiffs claimed to recover for the same items and cause of action in the second count, and to do it upon different principles and rules of law, than those, which could have been applicable to the first count. Amendments of this description have often been permitted. When a plaintiff has declared upon a sale and delivery of goods, he has been permitted to amend by charging the defendant for the same goods as received, to be sold on commission. Selden v. Beale, 3 Greenl. 178; Ball v. Claflin, 5 Pick. 303. When he had declared against the defendant as a joint promisor, he was permitted to amend by declaring against him as a guarantor. Jenney v. Pierce, 4 Pick. 385.

2. It is insisted, that the instructions contained in the third written request ought to have been given.

The substance of the position is, that a father having a legal settlement in a town and removing therefrom and leaving there a minor son, who remains there until he is of full age, thereby emancipates the son, who will acquire a legal settlement of his own. Such a position cannot be sustained. The statute provides, that legitimate children shall follow and have the settlement of their father, if he have any within the State, until they gain one of their own. They cannot gain one of their own, while minors, unless they have been emancipated. Certain facts were alleged in argument to show, that the minor had been emancipated. The bill of exceptions, however, does not exhibit any testimony to prove it; and the Court can consider only the testimony therein stated.

3. It is further insisted, that the election and qualification of the overseers of the poor, who furnished the supplies, could be proved only by record, as asserted in the latter clause of the seventh written request. Another clause in that request alleges, that it was incumbent on the plaintiffs to prove, that the persons, who acted in that capacity, were legally chosen and qualified. Had it been necessary to prove, that they had been legally chosen and qualified, the best evidence of the choice being the record, it should have been produced. But the plaintiffs were not required to prove that fact. It might be inferred from proof, that they had acted in that capacity. The decided cases are collected in notes under sections 83 and 92, in Mr. Greenleaf’s treatise on evidence.

4. It is further insisted, that the Court erred in refusing to comply with the eighth written request, and in the instructions which were given in relation to property owned by Huntley.

The statute c. 32, <§> 29, requires overseers of the poor to provide immediate comfort and relief for persons having legal settlement in other towns, when they shall fall into distress and stand in need of immediate relief. They are not required to inquire or consider, whether such persons have or have not property for any other purpose, than to enable them to determine, whether they have fallen into distress and are in need of immediate relief. Persons may be found in that condition, who have property. And it is the design of the law that relief should be afforded to those found in that condition ; and if they have property, the amount expended for their relief may be recovered of them by the towns, in which they may have a legal settlement.

When there is no testimony in the case, to which requested instructions can be applied, they are properly refused.

Exceptions overruled.