Inhabitants of Freeport v. Inhabitants of Edgecumbe

| Mass. | May 15, 1805

The Court,

(Sedgwick, Sewall, and Thacher, justices) seemed inclined to think that the plea was good ; and the counsel, believing that their opinion was against him, moved for liberty to withdraw the demurrer and reply. Upon which the Court said that the plea amounted to the general issue, and would have been bad upon a special demurrer assigning that for cause ; and that the facts relied on, in the plea in bar, would be proper evidence under the plea of non assumpsit. The counsel for the parties immediately agreed to strike out these pleadings, and that the cause should proceed to trial under the general issue.

* Afterwards, in this term, it came on for trial before [ * 463 ] .Sewall, J. Upon the trial it appeared in evidence that the overseers of the poor in Freeport had, more than two months previous1 to the commencement of the present action, given notice to the overseers of the poor in Edgecumhe of the facts relating to the supposed pauper, and requesting her removal to Edgecumhe, as pointed out in the 12th sect, of the act: and that such removal was not e Bee ted, nor objected to by them.

The judge ruled that, as it was in this sect, of the "act expressly declared that in such cases “ the town in which the settlement of the pauper is supposed to be shall be liable for the expenses of his support and removal, to be recovered by action, by the town incurring the same, and shall he barred from contesting the question of settlement with the plaintiffs in such action,” it was immaterial whether the person supposed to be a pauper was or was not so in fact. The overseers of the poor in Edgecumhe, not having objected to the request, had, by their neglect, bound their town, so far as it respected the demand of the plaintiffs in the presentation ; and if the person supposed to be a pauper was not so in fact, the town of Edgecumhe had its remedy against her. Had the question of settlement been open and liable to be contested between the parties, as, for aught that appeared upon the demurrer to the second plea, it might have been, then undoubtedly it would have been competent to the defendant to prove the ability of the supposed pauper to maintain herself. But the statute is express that where the request to remove the pauper is not objected to, within two months, her settlement shall, as between these parties, be considered as fixed and determined; and it is equally express in declaring that the defendants shall be liable for the expenses incurred fur her support.

See Topsham vs. Harpswell, post, p. 518; and Quincy vs. Braintree, post, vol v 86.