128 Mass. 137 | Mass. | 1880
By the terms of the Gen. Sts. e. 70, §§ 4-6, the defendant was liable on this process, if found to be of sufficient ability, and in proportion to his ability, to be assessed a reasonable sum for or towards the support of the pauper, to the time of the assessment, and a further weekly sum towards her future support. The statute furnishes no definition of the words “ sufficient ability. ” Each case of the kind must depend upon its own special circumstances, and to a large extent also upon the discretion of the court. The only question of law presented by this bill of exceptions is as to the correctness of the interpretation applied to the words “ of sufficient ability,” by the presiding judge.
It was correctly ruled that it was a question of present ability, not ability to pay the assessment under all the uncertain contingencies which might happen in the future. It was to be judged of with reference to the existing state of things, and to the present state of the defendant’s property and debts, his income and probable earnings, and his present reasonable expenses. It is to be remembered that, under § 11 of the statute, the court has power, on application, to revise and alter the assessment, if in course of time it shall be found to be burdensome and oppressive.
Under a similar statute in New Hampshire, it was decided, in Dover v. McMurphy, 4 N. H. 158, that a farmer whose real estate was worth from one thousand to eighteen hundred dollars, whose personal estate was valued at from two hundred to five hundred dollars, and whose debts were seven hundred dollars more than the debts due to him, was not to be considered as of sufficient ability to be a proper subject of this process. The court in its decision says that, under such an assessment, his income would be insufficient for his support, and therefore he should be excused from that additional burden. In Hillsborough v. Deering, 4 N. H. 86, it also says, in substance, that a farmer ought not to be called on in this manner, who cannot from his farm, with his own labor and the assistance of his family, maintain himself, his wife and children, and pay the interest of his debts. And in Colebrook v. Stewartstown, 10 Foster, 1, the rule is stated to be, that, if a father cannot afford the required contribution with» out reducing his property below the amount required, with hia
The rule which the respondent requested the court to adopt, in our judgment, goes beyond these decisions of the New Hampshire court, and would restrict this statutory liability to such persons only as have a surplus income over and above their own reasonable maintenance, according to their respective stations and needs. The court was right in refusing to adopt this ruling. We cannot agree that, in the case of a man whose property at a cash valuation in the present market exceeds his debts by between five and six thousand dollars, the amount of his income is necessarily the decisive test of his ability to. pay such an assessment. It is easy to suppose a case in which a man might have large possessions, although the immediate income might be small. It was correctly ruled, therefore, that if the required contribution “ would not cause present deprivation of reasonable and comfortable support of the respondent and his family, or interfere with the fulfilment of his obligations to others, yet the fact that such contribution might impair his capital was not of itself a sufficient reason why such contribution should not be ordered.” Exceptions overruled.
