Town of Dover v. McMurphy

| Superior Court of New Hampshire | Sep 15, 1827

Richardson, C. J.

delivered the opinion of the court.

This is not a case, where the attempt is to charge with the support of his father an individual, who is without a family and without property, but who is able to earn by his labor, annually, more than is necessary for his own support. It will be time enough to consider what directions ought to be given to the jury in such a cause, when it actually occurs. This is not such a cause.

Nor is this a case, where a remedy is sought against a father for the support of his unemaneipated children. By the principles of the common law, and independently of the provisions of the statute, a father is bound to maintain such children so long as he has any means whatever, to do it. They therefore stand, in this respect, on grounds peculiar to themselves.

Rut here the attempt is to charge with the support of his father a son who has a small farm and some personal property, who has four children, who is in feeble health, and in debt. If, under the circumstances, he is to be deemed of sufficient ability to maintain his father, this action is maintainable, upon the statute, otherwise not. The language of the statute is, “ that the relations of any poor person standing in need of relief in the line of father or grandfather, mother or grandmother, children or grandchildren, of sufficient ability, shall be liable to maintain and relieve them.” And the question is, whether the directions given to the jury in this case, as to what is to be considered as sufficient ability in persons situated like this defendant, and what not, were correct ?

As to what shall be deemed sufficient ability the statute is silent. Indeed, it would have been difficult, if not impossible, to have prescribed a safe and certain rule by which the ability of individuals might have been in all cases properly determined. It is a question which in its nature must depend on divers circumstances perpetually varying in all the different cases ; and must, to a certain extent, be left to be settled according to the circumstances of each case.

There are men, who possess ample fortunes and whose ability to maintain their poor relations cannot be doubted —men to whom it would be a disgrace to see those who stand in the relations to them mentioned in the statute maintained by towns. There are other men, of fortunes so slender, and of means to maintain themselves so precarious, that our feelings would revolt at seeing the burden of supporting their poor relations thrown upon them. In cases of these classes the question of ability is easily settled. But there is a numerous class of men in the community who are neither poor nor rich ; who are in moderate circumstances ; who are able in a, fortunate season to add something to their estates, but who are liable in another season to fail behind hand by reason of sickness or other misfortune ; and with respect to individuals of this class it is often very difficult to say whether they are or are not of sufficient ability. We have often had occasion to give instructions to a jury as to what was to be considered as sufficient ability among this class of men, and have uniformly given to them the instructions which were given in this case. And it still seems to us that those instructions were as favorable to the plaintiffs in this case as the law will warrant. If the individual who is sought to be charged cannot, by the income of his property, with his own labor and that of his family, maintain himself and family, pay the interest of his debts and maintain the poor relation, he must, if charged, become annually poorer. And the natural tendency of throwing the burthen upon him, under such circumstances is, to dishearten and discourage him, to break down his spirit, to reduce him to poverty and in the end to throw him upon the town for support. This is contrary to sound policy and the spirit of the statute. For the object of this provision in the statute was to lighten the burthens of towns ; and if such a construction be given to it as will tend to increase the number of paupers, its true intent will be defeated.

We are inclined to think that if there be any doubt as to the propriety of the rule laid down to the jury in this case, it is, whether it be not too severe, and whether it does not go too far against the person to be charged. It subjects all his net annual income to the maintenance of his relations. To a man with a family, to be educated and settled in life, and with a small farm not sufficient to support him without his labor, this rule seems to us sufficiently severe.

Wc cannot, therefore, accede to the rule proposed by the plaintiff’s counsel — to subject to this liability all a man’s estate except what may be sufficient for his support during life — because that would be still more severe than the rale laid, down in this case, and would in our opinion tend to increase the burthens thrown upon towns rather than relieve them — and because it would be impracticable to apply such a rule with any certainty. There are no data by which it can be estimated how much a man may want to support himself and those who may depend upon him, through life- It must be all vague and uncertain conjecture.

We are therefore of opinion that there must be

Judgment on the verdict.