Stewart v. Inhabitants of Sherman

4 Conn. 553 | Conn. | 1823

Hosmer, Ch. J,

The defendant, in the first place, contends, that Elihu Wright, the supposed pauper, having been induced to return from a neighbouring state, to the town of Sherman, by the persuasions of the plaintiff, the act was fraudulent, and a legal bar to his recovery.

From the motion, it appears, that Wright had been many years absent; and that the plaintiff, his brother-in-law, went after him, and persuaded him to return, for the purpose of compelling the town to support him. These facts, considered abstractedly, imply no fraud, nor any thing incompatible with fair, upright, honourable conduct. The judge could not charge the jury, that if the plaintiff was instrumental in procuring Wright to return, it was a fraudulent act; for this, which was the only fact in evidence, did not tend, in the slightest degree, to evince a fraud. It is perfectly compatible with the evidence adduced, that Wright was destitute of common understanding, and residing, within another state, in absolute poverty and distress; and under these circumstances, it was the duty of the town to support him, and a laudable act in the plaintiff to procure his return.

The declaration alleges, what it was indispensible to prove, that Wright was poor, impotent, and incapable, through infirmity, of supporting himself. If he were not a pauper, the duty of furnishing him maintenance never devolved on the town of Sherman; and the law will not imply a contract, on their part, to pay the plaintiff for his support. It is an admitted fact, that there existed a promissory note for ninetysix dollars, made to the plaintiff, by one Sylvanus Stewart, who was able to make payment of it; and that, during the whole time of the support furnished by the plaintiff this note was in his possession. How can it be said, that Wright was poor, and unable to support himself? The money should have been collected, and when exhausted, if the town would not furnish the necessary support, the plaintiff then might have done it, and sustained his action against the defendants for his advancements. It is no sufficient reply, that Wright had no knowledge of the existence of the note. His want of information did not reduce him to pauperism; nor, whatever was the plaintiff's motive for suppressing information of the fact, is it true, that Wright was poor, impotent, and incapable of supporting himslef? He was the owner of a fund, which, at any moment, might have been realized, and the only preventive of which, undoubtedly, was, the voluntary omission, or culpable neglect, of the plaintiff. If due information had been communicated to Wright, it is a reasonable presumption, that he would have enjoined the collection of the note; and if be had refused, the plaintiff would have known, that he was not a pauper, and that it was not the duty of the town to support him. The plaintiff has insisted, that the amount of the note being first deducted from his claim, and all the property of Wright being thus exhausted, he, of right, may recover the balance. To this the answer is conclusive, that until the exhaustion of the fund Wright cannot be considered as a pauper; and of consequence, there was no obligation on the town to furnish him a maintenance. The necesssary character, which constitutes a condition precedent to the duty of support by the defendants, has never existed; and until the happening of this fact, the law will never imply an assumption of the defendants to pay the plaintiff for supplies furnished. If the property of Wright had consisted of an acre of ground, of equivalent value with the above-mentioned note, the case would not be less favourable than the present. Should he insist upon the retention of the land, the support furnished by the plaintiff, must be on his personal credit, and not on the credit of the town: and as long as the property continued vested in Wright, so long he would not be a pauper, with a claim for support by virtue of his settlement, unless the exigencies of his case demanded more than he had the means of procuring. These principles should have been communicated to the jury, with the direction, upon the facts conceded, to find a verdict for the defendants. The charge of the judge, perhaps, contains no incorrect principles; but it was defective, in omitting to instruct them as to the legal consequences resulting from the fund, of which the supposed pauper was possessed. Hence, the plaintiff obtained a verdict, when the case was manifestly in favour of the defendants.

Peters, Brainard and Bristol, Js. were of the same opinion. Chapman J. dissented.

New trial to be granted.