Town of Burlington v. Town of Calais

| Vt. | Jan 15, 1829

Hutchinson, J.

delivered the opinion of the Court, first concisely stating the case.

The points now in dispute are reduced to a narrow compass. Supposing the plaintiffs to have a just claim upon the defendants for the support of Davis, the pauper, while confined in the common jail, in Burlington, have they shown a proper notice of their claim before the commencement of this action ? About this there is no dispute, if the testimony offered by, the plaintiffs to that point was legally admissible. It seems that a letter was sent by the mail to the overseers of the poor of Calais, containing the proper notice of the expenditures, and requesting payment. And, to prove that this letter was received, the plaintiffs offered, and the Court admitted, proof, that, at the trial of this cause before the magistrate^ Mr. Wheeler, one of the overseers of the poor of said Calais, and the acting agent to defend this suit, acknowledged that he had duly received the letter; that he fully acknowledged this, while attending the Justice Court, during and immediately after the hearing of the cause.

It is objected that this testimony was not admissible. The doctrine is well settled, that the sayings of an -agent while executing his agency, form a part ofthe'féí gesta> and may be proved against h& principal: but the after confessions of such agent, about the? ( facts of the case,may not be thus proved ; but the party wanting the-proof must call the agent himself, or other witnesses to what actually transpired at the time. In 1st of Camp. R. 140, Young et al. vs. Wright, cited in Peake, 36, it is said what an attorney admits on'the record, to obviate the necessity of proving it, binds his client; for he will be presumed authorized. The acknowledgment in the present case, though not made of record, was made to obviate the necessity of proof, and that at the time and place of trial, and while Wheeler was executing his agency as overseer of the poor in defending the same suit, preparatory to> which the letter was sent. It is urged, however, that Wheeler* might have been called as a witness by the' plaintiffs. So may any one, who acts merely as agent, pe called at any time to prove what transpired connected with his agency, Wheeler, though ant inhabitant of Calais, is made a competent witness by statute, and could not refuse to testify if called by the plaintiffs ; yet it would ■ be going too far, to compel the plaintiffs to bring' him to' court,and use him as a witness, when he, in the execution of his agency,' has furnished such testimony as that adduced in the present case.This exception is overruled.

' We proceed to enquire whether the charge of the court was correct with regard to the residence of said Davis, and his gaining a settlement after the statute of 1797 came in force? The testimony was,that he left his family in the log-house in Calais,where he had formerly lived, before he moved to Waterbury, and went to the eastward with a view of finding a place to which he would remove his family; that he visited his family several times j was not from them a full year at any one time; that he found no place to which he concluded to move his family till the year 1801; that during all that time, he intended living' in Calais, unless he' found a place that suited him somewhere else. In all this,there is no making of any rest at any one place without a view of settling there. Where his family 'was, must have been his domicil,or he hadnoné. This is not like the case of Raymond, cited from .Mass., Reports. He left his family in Vermont,and took up his residence - to Massachusetts, with a view to move his family there as soon as convenient. — Nor is it like the case of Bilerica and Chelmsford, where the pauper actually moved his family with a view to settle and never return, but moved back after three months. Davis’ domicil being in Calais, from the time the statute of 1797 came into operation, until the latter part of September, 1801, when he moved with his family to the then Province of Maine, we think this such a residence as would gain a legal settlement in Calais.

But the defendants insist that, as Davis, when he last moved to Calais, had not newly come into the state, but moved from Wa* terhwry, another town within the state, a year’s residence would not gain him a settlement. The first section of this statute, (see page 369,) describes the various ways, in which a person may gain a settlement in any town. 1. The purchasing, paying for, ¡jnd occupying for a full year, a freehold estate of the value of ‡ 100. 2. Renting a tenement, and occupying two years, and paying a rent of $20, or upwards. 3. Living in town,and executing a public office one whole year. 4. Having paid his share of the public rates or taxes, for the space of two years. 5. Having been bound,and served as an apprentice not less than three years before coming of age. It then adds, 6thly. “ And every other healthy, able bodied person, coming and residing within this state, and being of peaceable behaviour, shall be deemed and adjudged to be legally settled in the town or place in which he or she shall have first resided for the space of one whole year.” It is contended that this last provision extends only to persons newly coming into the state. And this idea is enforced by the argument, that, upon any other construction, it would render some of the former provisions useless. This argument is not without weight; yet ws are unwilling to believe the legislature, at so late a period as the year 1797, would designedly make such a provision for the mere purpose of encouraging emigration; especially when it could have no such effect whatever. Every person moving from without the state into any town within the state, has a legal settlement in such town forthwith, so far as relates to the liability ' of such town to furnish their support: that is,; if they are in want, the town must maintain them, and cannot remove them to the place whence they came, it being out of the state; nor to any other town in the state, because they have no residence there. We cannot, therefore, presume that the legislature would make such a provision for an object that would not be effected by it. This last provision might have been introduced as an amendment to the former parts of the section, without a full consideration, how far it might absorb the former provisions. Yet even this may not be so; for'the former provisions have no regard to the question of good or ill health, nor to the question, whether a person should be able bodied when - coming into any town to reside. Hence the legislature may have intended to make health and strength of body as good a qualification for a settlement, as a certain amount of property, used' in a prescribed manner. Furthermore, the provisions about towns, in that statute, all relate to towns within this state; towns over which the laws might have effect, and between the rights of which,courts might adjudicate and give effect to their decisions.

That statute looks forward exclusively. It makes provision for •the future gaining of a settlement. The expression “ coming and ¡residing in the state,” is indefinite and must be inoperative, till we . pass on to the expression of the place within the state: that is, the town -in which there is first a residing a full year. That may alike mean, the first, after the act comes in force, or first of their residing in any town. This, probably, ought to be construed, according to its spiritand meaning. As applied to those who should afterwards change their residence, it means the town into which they remove. As applied to the inhabitants that were stationed when the act passed, their remaining where they were, and being healthy and able bodied, brings them within the act. It is not to be presumed that- the legislature intended to repeal all former modes of gaining a settlement, and not make provision for those inhabitants, that had not yet gained a legal settlement, though they had become stationed for life. Nearly the same expression is used in the warning-out statute ; and hyone mode of construing, that might only refer to such as should, after the passing of the act, change their residence. But the Supreme Court have put a construction upon that statute. They have decided that persons residing in any town when the act passed, and who continued to reside there a full year, without-being warned out, gained a se.t-tlement. Their being and residing is tantamount to their coming and residing. That extends the provisions of the statute to all who had not gained, a settlement before the act passed. Asettlementwouldbepre vented by a warning; and would be gained, if the warning was neglected. That decision fully supports the construction we have now given to the statute of 1797.

Thompson, for plaintiffs. Griswold, for defendants.

Upon the whole view of - the case, we approve the instructions given to the jury on the trial, and the judgment of the County Court is affirmed.