
    The inhabitants of the town of Stratford against The inhabitants of the town of Fairfield.
    
      June 29.
    The appointment of an overseer, by the select-men of a town, over a person residing in another town, is invalid.
    A 'person over whom an overseer has been legally appointed, may, during the continuance of such appointment, gain a settlement, by commorancy.
    Where it appeared, in an action by the town of S. against the town of F. for the support of a pauper, that some time before the commencement of the action, one of tile select-men of >S. gave notice to one of the select men of F., that the pauper was then supported by S., and that F. must support him, or pay for his support, upon which the select-men of F. utterly refused to support him, and denied the liability of F. for his support ; it was held, that such refusal of support and denial of liability amounted to a waiver of the notice and demand, which, otherwise, would have been necessary.
    In an action brought by the town of S. against the town of F., for the support of B., a pauper, whose original settlement, which was in S., had been transferred, as the plaintiffs claimed, to F., fay six years residence therein ; the defence was, that certain inhabitants of S., and especially one H., a select-man of S., had procured the residence of B in F., with the fraudulent intent of imposing him on that town for support. To repel this de-fence, the plaintiffs introdued II. as a witness, who denied the imputed fraud. To contradict and discredit the testimony of II-, the defendants then offered to prove, that in a conversation just before the expiration of the six years, H. said, “ I am pretty old ; I shall get B. on to the town of F. soon and that just after the six years had expired, he said to another person, “ By George, drown the rats! We have got him on to F. now.” Held, that these declarations of H. were admissible.
    THIS was an action of assumpsit, for the support of Lewis Beach, alleged to be a settled inhabitant of the town of Fair-field.
    
    The cause was tried, on the issue oí non-assumpsit, at Fair-field, December terna 1820, before Chapman, J.
    To maintain the issue, on the part of the plaintiffs, it was necessary for them to prove, that Beach had become an inhabitant of Fairfield, by a residence of six years, in that town, during, and subsequent to, the year 180G. The fact of such residence was denied, by the defendants. To obviate the testimony introduced by the plaintiffs to prove such residence, the defendants offered evidence to prove, that certain inhabitants of Stratford, procured such residence fraudulently, for the purpose of imposing the pauper on Fairfield ; which was effected chiefly, by the agency of one Samuel Hawley, who was a select-man of Stratford from 1805 to 1815. Hawley being introduced by the plaintiffs as a witness, denied, that he had procured Beach to reside in Fairfield at all. He also denied, on cross-examination, that he had furnished any supplies to Beach, or practised any fraud to make him an inhabitant of Fairfield. The defendants then offered a witness, to testify, that Hawley, in conversation, just before the six years had expired, said,—«“ I am pretty old—d shall get Beach on to the town of Fairfield, pretty soon;” and that just after the six years had expired, he said to another witness—“ By George, drown the rats ! We have got him on to Fairfield, now.” This testimony was objected to, by the plaintiffs ; and the judge rejected it.
    
      Fairfield,
    
    In the progress of the trial, the defendants denied, that any legal demand had been made of them before the commencement of the action. The facts were these. Some time before the commencement of the action, one of the select-men of Stratford had given notice to one of the selectmen of Fairfield, that Beach was then supported by the former town, and that the latter town must support him, or pay their disbursements ; and the select-men of Fairfield utterly refused to support him, and denied the liability of Fairfield for his support.
    It appeared, that from January 1809 to January 1810, Samuel Hawley acted as overseer of Beach, by appointment of the select-men of Stratford; and the defendants insisted, that such year should not be computed in the six years. The plaintiffs insisted, that if Beach was, during that year, a resident in Fairfield, and had been so since 1806, the appointment was void ; and if not void, yet it could not affect his settlement. The judge instructed the jury, that by the facts admitted, a sufficient demand had been made ; and that the appointment of an overseer, it Beach was a resident in Fairfield from 1806 to 1809, was void.
    The plaintiffs having obtained a verdict, the defendants moved for a new trial, for the rejection of the testimony offered by them, and for a mis-direction.
    
      Sherman, in support of the motion,
    contended, 1. That the declarations of Hawley, a witness for the plaintiffs, to establish the fairness of Beach's residence in Fairfield, and to repel the imputation of fraud, ought to have been received, to impair the credibility of his testimonv. These declarations are repugnant to the fact, which it was the object of Hawley's testimony to establish.
    2. That the direction to the jury as to notice and demand, was incorrect. The disbursements, for which the action is brought, extended to the commencemént of the action. Of these disbursements, no notice was given, or demand made. A notice previously given, that Stratford was then supporting the pauper, and a demand of remuneration forfuture disbursements, were not such notice and demand as the law required. Nor did the defendants ever waive, or have an opportunity to waive, notice and demand, in relation to the disbursements in question. The defendants had, at all times, an unqualified right to contest their liability ; and it would be preposterous to say, that the exercise of this right should operate to deprive! them of another right, or ground of defence.
    3. That the appointment, by the select-men of Stratford,;i of an overseer to an inhabitant of that town, though residing, at the time, within the limits of another town, was valid. The! .o.6/eci of the statute (tit. 88. c. 1. s. 8.) requires this construction. The subjects of its provisions are the inhabitants of the town : nothing is said about their domicil. If the appointment was valid, then the pauper could do nothing towards acquiring a settlement, during its continuance. No person who is disabled to make a contract, can gain a settlement—e. g.— infants. Huntington v. Oxford, 4 Day 189. The only disability of an infant, is, that he cannot make a contract.
    
      Daggett and J. Backus, contra,
    contended, 1. That what Hawley had said, was not admissible. He was not a party, so as to make his declarations evidence. As a witness, he could not be asked any question not relevant to the issue, for the purpose of discrediting him.
    2. That a new trial ought not to be granted, for any defect of notice, and demand. In the first place, no foundation is laid in the motion for raising the objection. It is not stated what part of the account, nor indeed that any part, accrued subsequent to the notice given. Secondly, further notice was waived, by the conduct of the agent of the defendants. Thirdly, as the jury have found, that the entire amount of expenditures claimed, was made, justice does not require that there should be a new trial.
    
      3. That the select-men of Stratford were not empowered to appoint an overseer to a man residing in another town. There is nothing in the words or the object of the statute, extending the power of the select-men beyond the limits of their own town; and the analogies of law are opposed to such an extension.
    4. That if the appointment were valid, it would not prevent the pauper from gaining a settlement. His incapacity is limited to a single subject; and is created for a special purpose : as to every other subject, and in every other respect, he is sui juris.
    
   Hosmer, Ch. J.

The appointment of an overseer, by Strat-ford, over Beach, when residing in the town of Fairfield, was invalid. He was not in the town of Stratford, subject to the inspection of the select-men, and to the appointment by them of an overseer ; (1 Stat. Conn. tit. 88. c. 1. s. 8.) and if it had been duly made, it could not have affected his commorancy in Fairfield. He would have remained sui juris, as to every thing, but the making of contracts.

The refusal of the select-men of Fairfield to support the pauper, and denial of their liability to do it, some time before the commencement of the action, amounted to a waiver of notice and demand; which, otherwise, would have been necessary, on the part of Stratford. The precise time of the waiver is not specified ; but there is nothing on the motion, from which it appears, that it had any other than a retrospective operation. It must be presumed, that the jurisdiction of the court was exercised soundly, except so far as this presumption is repelled.

Evidence was offered to impair the credibility of one Haw-ley, a select-man of Stratford, and a witness, and was rejected ; which is the only point that remains to be considered.

The defendants exhibited testimony conducing to prove, ,»⅜⅝⅛ ihat certain inhabitants of Stratford procured the residence of Beach in Fairfield, with the fraudulent intent of imposing the pauper on that town, and chiefly through Hawley's agency. ⅜' To annul the effect of this evidence, Hawley was adduced as a witness, by Stratford, and denied that he had procured :.⅝|Beach to reside in Fairfield, or furnished him with any supplies while there, or practised any fraud to render him an inhabitant of the latter town. To contradict Hawley, a witness on the part of Fairfield was offered, to testify, that in a conversation just before the expiration of the six years’ residence, which would constitute the pauper an inhabitant of the said town, Hawley said : “ I am pretty old ; I shall get Beach on to the town of Fairfield, pretty soon.” And that just after the six years had expired, he said to another witness, “ By George, drown the rats ! We have got him on to Fairfield, now.” The offered evidence was repelled, and in my opinion, incorrectly. It was material to show, that Hawley had not testified truly ; and the proposed testimony conduced to prove this fact, and should have been committed to the jury. His declaration, that “ he should get Beach on to the town of Fairfield,” implies, that he was instrumental in procuring the pauper’s residence there ; and his exultation at the event, accompanied with the expression, “We have got him on to Fair-field, now,” has too much the appearance of a triumph on the ⅞: success of unjustifiable means, to which craft and selfishness i had prompted him.

On the ground of the last objection, I would advise to a new i trial.

The other Judges were of the same opinion.

New trial to be granted.  