
    The town of Naugatuck against The town of Middlebury.
    
      New-Haven,
    
    
      July, 1850.
    
    In 1807, the town of M. was incorporated, including territory taken partly frons the town of W; and in the act of incorporation, it was provided, that the expense of supporting inhabitants of those towns living without their limits, who should thereafter become chargeable without those limits, should be paid by W and M. according to the list of 1806. In 1807, W, and M, agreed in what manner they would divide the expenses of supporting paupers, who should became chargeable without said limits. In 1844, the town of N. was incorporated, comprising territory taken from W. S.} a pauper, was born, and has ever since had a settlement in that part of the town of Wn which thus became a part of N. At the time of the incorporation of M., he was living without the limits of W. and M., and afterwards became chargeable without those limits; one-fifth part of the expense of his support, which, according to the list of 1806, was M's proportion, being paid by M. to W. until 1844. In 1845, *S. returned to N., and was supported, as a pauper, by that town. In an action brought by N. against M, for its proportion of such support, it was held, I. that the pauper, by the common law of this state, irrespective of special legislative provisions, was settled in the town of N.; 2. that the agreement between W. and M in 1807, did not affect the question of settlement; 3. that there was no special provision in the charter of M, which subjected that town for the support of S., an inhabitant of, and living in, N; consequently, the plaintiff could not recover. [Two judges dissenting.
    This was an action of assumpsit, for supplies furnished, by the plaintiffs, to one Oliver Stephens, a pauper, from the 1st day of July 1844, to the 1st day of January 1849.
    At the term of the superior court in New-Haven, January term, 1850, the following statement of facts was agreed to, by the parties, and was, by the court, found to be true.
    1. Oliver Stephens, the pauper, was born, and has ever since had a settlement in that part of the old town of Waterbury, which is now Naugatuck.
    
    
      2. Middlebury was incorporated as a town, by a resolve of the General Assembly, passed in 1807, containing, among others, the following provisions : said town of Middlebury shall be liable for the support of their proportion of the poor of said towns, [referring to the towns of Waterbury, Wood-bury and Southbury, from which the territory of Middlebury was taken,] and of such as are now chargeable to said towns, according to their list of August 1806, and shall assume the maintenance thereof.”-“ And whereas there are inhabitants, previous to this incorporation, who live without the limits of Waterbury and Middlebury, and hereafter may become chargeable without said limits, whenever said charge shall happen, it shall be paid by said towns of Waterbury and Middlebury, according to the list of August, 1806.”
    3. At the time of the incorporation of the town of Middle-bury,, the pauper in question was living without the limits of both the towns of Middlebury and Waterbury.
    
    4. Afterwards, on the 28th day of December, 1807, the towns of Middlebury and Waterbury mutually agreed in writing, regarding the expenses of supporting the poor of said towns, who should become chargeable without said limits, as follows, viz., that the town of Middlebury should take, as their proportion of the poor of the town of Waterbury, to support thereafter, the widow Thankful Rowley, and three others named, not including Oliver Stevens, with a special stipulation as to Obadiah Scott.
    
    5. The pauper remained absent from both the towns of Waterbury and Middlebury, from the time of said act of incorporation, for a period of about fifteen years, when he became first chargeable, as a pauper, in the town of Danbury ; and soon thereafter was returned, as a charge to the town of Waterbury, where he belonged, and where he was after-wards, occasionally, a charge to the town, until 1844; when he again left the town of Waterbury, and was absent therefrom, and from the town of Middlebury, at the time of the incorporation of the town of Naugatuck, as hereafter mentioned.
    6. The town of Middlebury paid to the town of Waterbury one-fifth of the expense of supporting said pauper, whenever and wherever incurred, previous to the year 1844 ; that being the proportion of the poor of said towns, according to their list of August, 1806.
    7. The town of Naugatuck was incorporated, by resolve of the General Assembly, in 1844.
    8. Afterwards, on the 12th day of December, 1844, the towns of Waterbury and Naugatuck, by the select-men of those towns respectively, duly authorized under the resolution of the General Assembly, incorporating the town of Nauga-tuck, made a written agreement, apportioning and dividing the then present town poor, as follows, viz. “ They have mutually agreed upon the following list of persons as the present town poor of the town of Waterbury, mentioned in the resolution aforesaid, namely, Jabez TVelton," [and twenty-three others, among whom the pauper in question is not named.] " and in pursuance of the resolution of the General Assembly aforesaid, and of the power vested in us thereby, we have apportioned and divided the aforesaid present town poor between the towns of Naugatuck and Waterbury, as follows, viz., we have apporLioned and set to the town of Naugatuck, the following persons of the list aforesaid, viz., Garry Osborn, [and five others,] and the same shall be settled inhabitants of the town of Naugatuck, for all purposes, as specified in the resolution aforesaid ; and the remaining eighteen persons named in the list aforesaid, we have apportioned and set to the town of Waterbury; and the same shall be settled inhabitants of said town of Waterbury, for all purposes, as aforesaid."
    9. After the incorporation of the new town of Naugatuck, the pauper returned to that town, and on the 20th day of October, 1845, again became chargeable. And the town oF Naugawck has expended the sum of 154 dollars, 97 cents, for the support of said pauper, (in said town,) between the 20th day of October, 1845, and the date of this writ; one-fifth of which they now claim to recover of the town of Middleburq, due notice having been given, &c. Upon these facts, the questions of law arising thereon, were reserved for the advice of this court.
    Buel, (with whom was Kellogg,) for the plaintiffs,
    contended, 1. That upon the admitted facts, and by the provisions of the resolve of 1807, incorporating the town of Middle-bury, that town, from the time of the pauper, Stephens, first becoming chargeable, was liable for one-fifth part of his support; that being their proportion under such resolve. In the first place, the pauper living without the limits of the towns of Jlliddlebury and Waterbury, at the time of the incorporation of the former town, and afterwards, and before returning, becoming first chargeable without the limits of said towns, the liabiliiy of Middlebury for their proportion of his future sup~ port, became fixed, as a permanent liability, under said resolve. Priv. Stat. 1161,2. Secondly, by the common law of this state alone, in the absence of any different rule prescribed by the legislature, the pauper would have belonged, wholly to Waterbury. Bethany v. Oxford, 15 Conn. R. 550. Waterbury v. Bethany, 18 Conn. R. 424. But, thirdly, the-legislature, by the resolve of 1807, have prescribed a different rule from that of the common law, as to two classes of persons : the poor, then changeable ; and those absent, who should afterwards become chargeable without the limits of the two towns. To the latter class, the pauper in question belongs. Fourthly, the resolve is to be construed according to the apparent intention of the legislature, to be gathered from the entire language used, in connexion with its subject and purpose ; and a large construction is to be given, when it can be done, without violence to its terms. Rawson v. The State, 19 Conn. R. 292. Wolcott v. Pond, Id. 597. Bethany v. Oxford, 15 Conn. R. 550. Fifthly, the town of Middlebury, for more than twenty years, has given a practical construction to the resolve, by paying their proportion of the pauper’s support up to the incorporation of Naugatuck; showing the understanding of the towns of Middebury and Waterbury, as to the intention of the legislature.
    
      2. That the resolve of 1844, incorporating the town of Naugatuck, was not intended to discharge, nor did it expressly or impliedly discharge Middlebury from her liability for the support of the pauper Stephens, under the resolve of 1807, but only substituted Naugatuck as her partner in that liability, in place of Waterbury. Priv. Slat. p. 86. sess. 1844. In the first place, there is nothing in that resolve, that necessarily releases Middlebury from her former liability. Secondly, it had no operation, and was not intended to have, except upon the towns of Waterbury and Naugatuck, they alone being parties to it. Thirdly, it operated as, and was, a transfer or assignment to Naugatuck, of all that part of Waterbury, and its inhabitants, (including the pauper in question,) who were set off, with all their existing rights, among which was the right to draw from Middlebury one-fifth of the support of this pauper. Fourthly, the claim of the plaintiffs, works no injustice to Middlebury, and imposes on her no new liabilities. Fifthly, the resolve of 1807, having fixed upon Middlebury the liability for one-fifth of the support of this pauper, no subsequent legislative provision whatever, has discharged her from it. Sixthly, the liability of towns for the support of paupers, is a matter of positive law, and cannot be taken from one town and imposed upon another, without express authority from the legislature. Such a shifting of ha-bility cannot be effected by construction. Simsbury v. Hart-fords 14 Conn. R. 192.
    Kimberly and J. S. Beach, contra,
    contended, That Mid-dlebury, as a town, is not, and never was, Jiable for any portion of the expenses incurred within the limits of the ancent town of Waterbury, for the support of the pauper in question. They supported this poshion,
    1. As between Waterbury and Middlebury. In the first place, it is fuond, that the pauper is now. and ever has been, a settled inhabitant of that part of the ancient town of Wat-erbery now included in the new town of Naugatuck. Secondly, by the common law of this state, the pauper remained chargeable to the town of Waterbury. in which he had his legal settlement, at the time of the incorporatirn of Middle-bury, unless it is otherwise provided in the act incorporating that town, Waterbury v. Bethany, 18 Coon. R. 429, and cases there cited, Thirdly, by the act of 1507, incorporating the town of Middlebury, special provision was made for two classes of inhabitants only; frst, those inhabitants then poor and chargeable-that the new town should be liable for the support of its proportion of such persons, according to the list of 1508: and secondly. those inhabitants then being out of the binds of both towns, who should thereafter become chargeable without those limits-that such charge should be borne by said towns according to tneir respective lists of 1806. Fourthly. all inhabitants of said towns, then residing therein, and flit paupers. and all inhabitants then absent therefrom, and who should thereafter return, and become chargeable therein, were left to the operation of the common law, The pauper in question is within the latter description of persons, and so remained chargeable to Waterbury alone.
    2. As between Naugatuck and Middlebury. First, it is not claimed, that the act of 1S44, incorporating the town of Naugatuck, imposed any new obligation upon the town of Middlebury. Secondly, if it be admitted, that there was an implied contract, on the part of Middlebury, to pay to Waterbury a portion of this expense, such a contract was not assignable; and no action at law can be sustained by Nauga- 
      tuck against Middlebury. Thirdly, if Middlebury has heretofore paid a proportion of such expense, it in no wise affects. the case. The question is, whether the town of Middlebury is legally liable; and that question is not affected, by the acts or declarations of the officers of the town. Ludlow v. Weth-ersfield, 18 Verm. R. 39. But fourthly, Middlebury has never paid any thing to Naugatuck.
    
   Ellsworth, J.

Oliver Stephens, the pauper, was born in Naugatuck, which was, then, a part of Waterbury, but is now a distinct town, by the name aforesaid. By the common law of this state, a person absent on the division of a town, is settled in the particular locality where born or settled ; and therefore Stephens, unless there be something more, is an inhabitant of Naugatuck.

Had this pauper been supplied by any other town than Naugatuck, it is certain that Naugatuck could have been sued for the support furnished ; nor indeed could any other town have been made liable. He was not born in the limits of the present town of Waterbury or Middlebury ; and hence they could not be made liable. Stephens cannot be settled in two towns ; and where is he settled, if not in Naugatuck?

The agreement proved, in this case, between the towns of Waterbury and Middlebury, how they will apportion between themselves the expenses incurred for paupers, “ who may become chargeable without said limits,” does not affect the question of settlement.

Naugatuck is liable, as if no such agreement had been made. How then can this town sue for the support of its own pauper ? If it takes the place of Waterbury, as being equitably entitled to the benefit of the provision in the charter, this will not help the matter; for that provision embraces only expenses incurred “ without its limits." The latter words cannot be rejected as unmeaning or inconsistent; nor is their meaning open to a serious question. The charter of Middlebury seems to have made no provision for absent inhabitants, who should return to their respective towns, and become poor. Perhaps the legislature expected the usual law to apply, as the chance would be equal in the two towns, in proportion to the extent of territory.

We advise that judgment be rendered for the defendants.

In this opinion, Church, Ch, J. and Stores, J. concurred.

Waite and Hinman, Js.

thought, that, by the last clause in the act incorporating the town of Middlebury, the inhabitants of Waterbury and Middlebury, then residing without the limits of those towns, who afterwards became chargeable without said limits, were thereafter to be supported at the joint expense of such towns ; and that the application of said clause was not restricted to the expense of supporting said paupers, while residing out of said limits; and, as the pauper in question was one of the persons to whom the clause properly applied, it was the duty of Middlebury to pay its proportion of the expense of supporting him.

They also thought, that the incorporation of Naugatuck had not varied the liability of Middlebury, in any respect: that its only effect was, to exonerate Waterbury from its liability, and cast it upon Naugatuck; and consequently, under the facts agreed to, in this case, the plaintiffs were entitled to recover the amount claimed by them.

Judgment for defendants.  