
    * The Inhabitants of Leicester versus The Inhabitants of Rehoboth.
    If the town of A has incurred expenses in the support of a pauper supposed to have his legal settlement in B, and the overseers of A give notice thereof to the overseers of B, and request his removal; although the notice be not answered, nor objected to, and the expenses are paid by the town of B,but the pauperis not removed; in an action against the town of A, for after expenses incurred by the town of A in the support of the pauper, "the defendants are not concluded from denying that the settlement of the pauper is in B.
    This was an action of the case in assumpsit, brought for the recovery of money expended by the plaintiffs between August 18, 1804, and February 9, 1806, in the support of a pauper, and by them alleged to be chargeable to the town of Rehoboth. The action was pending in the county of Worcester, and upon trial before Sewall, J., at the sittings after the last September term, a verdict was taken for the defendants, subject to the opinion of the Court on the following statement of facts: —
    “ The overseers of the poor of Leicester, on the 11th day of Oc tober, 1802, gave notice in writing, as the law requires, to the overseers of the poor of Rehoboth, that said pauper was then in Leicester, was poor, and had become chargeable to that town, and requested his removal; which notice was not answered, nor objected to, on the part of Rehoboth, within two months, as the law requires. Afterwards the said town of Rehoboth paid said town of Leicester all the expenses incurred by the latter in the support of said pauper previous to said notice, and for more than two months subsequent thereto; but said pauper has never been removed.
    “ Now, if, upon this state of facts, the Court shall be of opinion that the defendants have a right to contest the settlement of said pauper in their town, in this action, then the parties agree that said verdict shall stand, and that judgment shall be rendered accordingly ; but if the Court shall be of a different opinion, then the parties agree that said verdict shall be set aside, that the defendants shall be defaulted, and that judgment shall be rendered for the plaintiffs for fifty dollars’ damages, with costs of suit.
   The action stood continued nisi, and at this term, no argument having been had, the opinion of the Court was delivered as follows by

Parsons, C. J.

From the facts in this case, as stated by the parties, it may be presumed that the plaintiffs consider * the defendants concluded from denying the allegation [ * 181 ] of the plaintiffs that the settlement of the pauper is in Rehoboth; because, on the 11th of October, 1809, the pauper then residing in Leicester, and having been chargeable to that town for his maintenance, the overseers of the poor gave notice thereof to the overseers of Rehoboth, requesting payment and a removal of the pauper; which notice was not answered to, nor objected against, in two months, but the expenses of supporting the pauper were voluntarily paid by the defendants.

Whether these facts amount to an estoppel, is the question to be decided according to the true construction of the statute of 1793, c. 59.

By this act there are three methods, in which the place of a pauper’s settlement may be determined; and a determination in either way will conclude the towns who are parties to it.

One method is, by judgment upon a complaint filed before a jus tice of the peace, or a Court of Common Pleas. Section 10, 11.

Another method is, by judgment in an action, for the maintenance of a pauper, against the town, in which his settlement is alleged in the writ. Sect. 9.

The third method, which is applicable to the present question, is provided in Sect. 19. When the overseers of any town, having been at expense in supporting a pauper, shall send a written notification to the overseers of the town, where his settlement is supposed to be, stating the facts relating to such pauper, and requesting his removal; if such removal be not effected nor objected to within two months after such notice given, then the overseers giving notice may remove the pauper to the town where his settlement is supposed, the overseers whereof shall be obliged to receive and provide for him; and their town shall be liable for the expenses of his support and removal, to be recovered by action, in which the settlement of the pauper shall not be contested. And the plaintiffs are supposed to insist that, by virtue of this method, the defendants cannot contest the settlement alleged in their writ.

After mature deliberation, we are of a different opinion. Estop- • pels are not to be favored, because the truth may be [ * 18£ ] * excluded. And no party ought to be precluded from making a defence according to the truth of his own case, unless in consequence of some positive and unequivocal principle of law.

If, when the removal was not objected to in two months, the plaintiffs had in fact removed the pauper to Rehoboth, the defendants could not then have denied the settlement of the pauper to be in their town; for the act provides that, when a removal is thus effected to the town not objecting, it shall be the duty of the overseers of that town to receive and support the pauper. Or if Leices ter Had not removed the pauper, but had without, or after the removal, commenced an action against Rehoboth, to recover the expenses of supporting the pauper, and had recovered judgment, this judgment would have concluded Rehoboth. But in the present case, Leicester did not remove the pauper to Rehoboth, and Rehoboth paid the demands of Leicester voluntarily, and without an action. We do not, therefore, consider the defendants as concluded, in this action, from denying that the pauper’s settlement is in Rehoboth; and we are satisfied that the verdict is right, and that judgment must be entered accordingly.

Bigelow for the plaintiffs.

Bangs for the defendants  