
    The Inhabitants of Sturbridge versus The Inhabitants of Holland.
    (n an action between two towns to recover the amount of expenses incurred by the plaintiff town in relieving a person whose settlement was in the defendant town, the fact that such person might by going a short distance have obtained of his debtor as much money as was expended for his relief, was held not to be conclusive evidence that he was nota pauper.
    But if he was not a pauper, evidence is admissible to show that he was in distress under such circumstances as to require immediate aid from the plaintiffs.
    Assumpsit to recover the amount of supplies furnished by the plaintiffs to Eliphaz Webber and his family, who were alleged to be paupers and whose legal settlement was in the town of Holland.
    At the trial in the Court of Common Pleas, before Strong J., the defence set up was, that Webber and his family, at the time when the supplies were furnished, were not paupers. It was proved by the defendants, that at that time and for some time before, a son of Webber was indebted to him in the sum of §42-50 ; and the son, who lived within two miles of Webber at the time when the supplies were furnished, testified that he would have been able to pay Webber the sum of five dollars (the amount supplied by the plaintiffs) on account of the debt, at any time when called on to make payment; which was not controverted by the plaintiffs ; but it did not appear that any of the town officers of Sturbridge knew of the existence of this debt. It was also proved by the plaintiffs, that Webber made a written application to the overseers of the poor of Sturbridge, for assistance, representing himself and family as being in need of relief.
    The judge thereupon ruled, that the existence of the debt due to Webber, and the ability and willingness of his debtor to make present payment of the sum of five dollars, were conclusive against the plaintiffs’ right to maintain this action.
    The plaintiffs then offered to prove, that the family of Webber, at the time when the supplies were furnished, were in fact in distress and in need of immediate relief; but the judge rejected the evidence and directed a verdict for the defendants.
    
      
      Oct. 10th.
    
    To these opinions the plaintiffs filed exceptions.
    
      G. Davis,
    
    in support of the exceptions, referred to St. 1793, c. 59, the first section of which requires every town “to relieve and support all poor and indigent persons, lawfully settled therein, whenever they shall stand in need thereof ; ” and the ninth section makes it the duty of overseers, in their respective towns, “ to provide for the immediate comfort and relief of all persons residing or found therein not belonging thereto, but having lawful settlements in other towns, wher they fall into distress and stand in need of immediate relief.” Overseers are- to act in the same manner under each of these sections ; they are to be governed by ostensible circumstances, otherwise there might sometimes be a failure of the relief intended by the statute. The plaintiffs were not guilty of neglect in not ascertaining that a debt was due to Webber, upon which he might have collected five dollars, and unless it is shown that they have not done all that could be reasonably required of them by the defendants, they ought not to sustain the loss of the money now sought to be recovered. Taunton v. Westport, 12 Mass. R. 357 ; Paris v. Hiram, ibid. 267.
    Whether Webber was technically a pauper, does not depend upon the smallness of the property belonging to him, so much as upon the circumstances in which he was placed. Watson v. Cambridge, 15 Mass. R. 290. The St. 1817, c. 186, § 5, which provides that towns may recover of paupers the amount of expenses incurred for their support, shows that a pauper is not supposed to be totally destitute of property.
    
      J. Davis and C. Allen, for the defendants,
    contended that a person is bound to make use of his own means of support, before he can require aid of a town. Webber could not be. a pauper when he had it in his power, by going two miles, to obtain from his own funds the amount which he received from the town. New Salem v. Wendell, 2 Pick. 341 ; Freeport v. Edgecombe, 1 Mass. R. 459. The circumstance that the plaintiffs had no notice of the debt due to him is not material. - If they were deceived, they may recover the money back from Webber by virtue of St. 1817, c. 186, § 5 ; but whether the defendants would have any remedy against him, is at least doubtful.
    
      
      Oct. 11th.
    
    Merrick,
    in replying, said the words of the provision were broad enough to give either town the remedy against the pauper, but that it ought to be sought by the town where he has his settlement. Salem v. Andover, 3 Mass. R. 436.
   Per Curiam.

In the court below, the fact that Eliphaz Webber might have obtained five dollars upon his demand against his son, was held to be conclusive evidence that he was not a pauper. We think, however, that it was not conclusive ; for there might be circumstances rendering it necessary for a person to have immediate supplies and not admitting of even the little delay which would be occasioned by going two miles to obtain them. And this necessity, it should seem, would' constitute the person a pauper within the meaning of the statute.

But if Webber and his family were not in the condition of paupers, technically speaking, still they might have been in distress and in need of immediate relief, and evidence upon this general question, whether they were so situated, ought to have been admitted.

The exceptions therefore are sustained, and a new trial is granted. 
      
       See Fiske v. Lincoln, 19 Pick. 473; Wilson v. Broolcs, 14 Pick. 341.
     