Town of Starksboro v. Town of Hinesburgh, 15 Vt. 200

Town of Starksboro v. Town of Hinesburgh

15 Vt. 200 | Vt. | 1843

Royce, J.

After stating the case, proceeded to deliver the opinion of the court as follows: — I shall first consider the objections taken to the charge of the judge. The question was, whether Bostwick, the pauper, acquired a settlement in Hinesburgh, under the last clause of the first section of the act of A. D. 1797, by residing in said town for one year, and being, in the language of the act, a “ healthy, able-bodied person, and of quiet and peaceable behaviour.” The previous parts of that section had provided various modes of gaining a settlement, all having reference to the ownership or possession of property, the payment of taxes, the discharge of town offices, or other qualifications, not necessarily involving the consideration of bodily health and strength, or of personal disposition and conduct. And it seems to have been the design of this concluding part of the section, to furnish a mode sufficiently comprehensive to embrace all other adult persons, who should demean themselves as inoffensive and wholesome citizens, and who might reasonably be expected to support themselves and families by personal labor; and, in most employments, the appearance of, at least, ordinary health and strength could alone justify such an expectation. ■

It may be remarked, in reference to the qualifications necessary to satisfy the descriptive words of the statute, that, whilst on the one hand, no person should be regarded as healthy and able-bodied within the act, who, from a feeble state of *209general health, or from any local disease or infirmity, was incapable of pursuing efficiently those branches of industry which the legislature had mainly in view ; so on the other, those words should not receive a construction which would operate unreasonably to lessen the number of persons for whom this provision of the law was designed. In our opinion, then, it was not required that a healthy person, ^within the meaning of the act, should invariably continue in health throughout the year, nor that an able-bodied person should remain wholly exempt from those accidents which, for a time, would impair his physical energies. It must be enough if the words of the statute could fairly be predicated of the person in his usual and habitual condition. And we think the charge of the judge was substantially in accordance with this view of the subject. The jury were instructed that if the pauper, during the year of his residence in Hinesburgh under the act of A. D. 1797, was “in the ordinary health which is enjoyed by others in health, and was possessed of the physical and bodily ability which men of sound bodies ordinarily possess,” he would have gained a settlement; and that this effect would not have been prevented, though he might, in the course of that year, have had “ a casual and temporary illness, or bodily unsoundness, which produced an occasional and temporary effect upon his capacity to gain a livelihood by his bodily exertions.” The words of the statute are here justly treated as relative expressions, having for their standard the ordinary condition of those who regard themselves, and are regarded by others, as healthy and robust persons, possessing their physical powers uninjured. It is objected, however, that the supposed exceptions to this condition of the person were not sufficiently defined and limited by the judge, and therefore may have been applied by the jury to a considerable portion of the year. JBut this objection loses its • force when the charge is understood with a proper reference to the evidence. If any such exceptions existed during the year, they were but occasional, and of short duration. The remainder of the charge upon this part of the case might be liable to objection, considered as a rule of general application, but, as applied to this particular case, it was not calculated to lead to any improper result. It related to the question, when the rheumatic disease, of which *210the pauper finally died, became fixed upon him as a permanent disease. And what was supposed by the judge, as to its subsequent effect, in rendering the pauper less able to support himself and family, was doubtless intended rather as a description of the actual consequences in that instance, than as a test by which to determine the importance of the fact, provided the disease did exist as a permanent one within the year. We think the jury could not have felt themselves at liberty, under the whole charge, to find a settlement in Hinesburgh, if they believed that the disease had become fixed and permanent at any time within the year.

The remaining questions to be considered relate to the admissibility and effect of certain testimony which is noted in the bill of exceptions. The deposition of Bostwick is conceded to have been regularly taken, and for sufficient cause, within the statute. It, therefore, became legal testimony, in the necessary absence of the witness. The unexpected attendance of the witness at the term for which the deposition was taken, suspended the use of it for that term, but did not affect it as competent testimony at a subsequent term, when the witness could not attend. Nor could the admissible character of this evidbnce be affected by a sworn repetition of the testimony which the witness had given in court. It would require the witness himself to keep out the deposition, and not merely his former testimony received at second hand. We regard both as legally admissible ; the former, as testimony expressly authorized by statute, and the latter, as a kind of evidence sanctioned by authority under such circumstances. And if admissible, like other evidence, it follows that neither could properly be treated as mere impeaching testimony, and not as evidence in chief. The distinction, in this respect, is between testimony which is admissible for the direct purpose of proving facts in the cause, and that which is not so. And as an illustration, I allude to the proof of what a witness on the stand has previously sworn in the same cause. This is but impeaching testimony ; and the reason is, that the witness being still alive, no rule of law will sanction the introduction of such proof as primary and direct evidence. It therefore cannot be received, under such circumstances, to prove any fact thus previously sworn to, but only to affect the present credit of the witness. *211There is no occasion to pursue the subject farther. We are all of opinion that the decision of the county court, limiting the effect of the deposition to that of mere impeaching testimony, was erroneous; and for that cause the judgment below is reversed.