
    The inhabitants of the town of Stratford against Sanford and others.
    The removal of paupers having no settlement in this state, from the town in which they reside and are chargeable, to another town, thereby throwing the burden of their support upon the latter town, is an actionable injury; for which the appropriate remedy is an action on the ease.
    And it is no objection to this remedy, that the party resorting to it is a corporation, not expressly authorized, by its charter or any general statute, to vindicate its rights in this mode.
    It makes no difference with respect to the right of action, whether such removal was effected in good faith, or with a fraudulent intent.
    Nor is it any defence, that the removal was effected, by virtue of a warrant, obtained by the defendants, as select-men of the town from which the paupers were removed, from the civil authority of that town; the issuing of such warrant being a ministerial, and not a judicial act.
    The general rule, that leading questions are ftOt allowed On tht OxattinitioS. in chief, is subject to the discretion of the court; and the admission of evidence in answer to such questions, knot a ground for a new trial.
    Where the town of D., in an action against two of its inhabitants, for transporting certain paupers therefrom to the town of S., assumed the defence of such action ; it was held, that this did not render a rote of the town of D. admitting the act complained of, and undertaking to indemnify the de. fondants, admissible in evidence against the defendants.
    In such case, the rule of damages was held to be, the amount necessarily and in good faith expended in supporting the paupers, from the time of their removal to the time of trial.
    This was an action on the case. The declaration embraced two counts.
    The first count stated, That on the 5th of October, 182.5, Sally Bevans, then pregnant with child, and her three infant children, Edwin, John and Caroline, no one of whom had ever had any legal settlement in Stratford, or had ever been there, were residing in the town of Danbury, and being paupers, utterly destitute of the means of subsistence, were chargeable to and supported by that town; that the defendants, who were inhabitants of the town of Danbury, and taxable therein, knowing the premises, but contriving and fraudulently intending to cast the burden of supporting these paupers on the town of Stratford, and thereby to relieve the town of Danbu-ry, and themselves as inhabitants thereof, from the expense of supporting such paupers, transported them, on the 5th of October, to Stratford, and left them there, in want and distress; and that, by reason of the premises, the plaintiffs were by law obliged to support them, and expended in their support, the sum of 700 dollars, they having continued to reside in Strat-ford until the commencement of this action, and having no place of settlement to which they could be legally removed.
    The second count stated, That the defendants were selectmen of the town of Danbury, and in order to relieve themselves and the town from the support of the paupers, and to subject the plaintiffs thereto wrongfully, the defendants, as such selectmen, made an ex parte application to the civil authority of Danbury, and untruly represented to them, that the paupers were settled inhabitants of the town of Stratford, and thereby fraudulentlv procured a warrant, directed to a constable, commanding him to transport them to the town of Stratford; which warrant was in form conformable to the statute; and that by virtue of such warrant and by the procurement of the defendants, the constable, on the 5th of October, 1825, transported the paupers to Stratford and there leave them, in a state of utter indigence and helplessness ; in consequence which the plaintiffs were obliged by-law to support them, and did support them, &c.
    The plaintiffs suffered a non-suit as to all the defendants, except Elijah Sanford and Elijah Gregory-
    
    The cause was tried at Fairfield, December term, 1831, before Bissell,J.
    
    
      To prove the facts stated in the declaration, the plaintiffs read in evidence the deposition of Levi Starr, the constable, containing, among other matters, the following interrogatory and answer: “ Question. According to your best recollect tion, was not the warrant given to you, either by E. Sanford or E. Gregory 1 Answer. 1 cannot tell, positively, who gave it to me. I think it was Elijah Sanford or Elijah Gregory ; but which, I cannot say.” The defendants objected to this part of the deposition, on the ground that the question put was a leading one. The judge overruled the objection and admitted the question and answer to be read in evidence.
    
      Sanford was present in court; and the defendants’ counsel admitted, in his presence, that the town of Danbury had assumed the defence of this case, and that they (the counsel) appeared and acted therein as counsel for the town. In con-nexion with these admissions, the plaintiffs offered in evidence the following vote of the town, passed at a town-meeting legally holden, on the 15th of November, 1830: “Voted, that this town will indemnify the select-men appointed in 1824, for all expense which may be made them, for transporting Benjamin Bevans’s family.” There was no evidence, that either of the defendants was present at such meeting, or that they had any knowledge of the vote. And thereupon the defendants objected to its being read in evidence. The judge overruled the objection and admitted it.
    
      Benjamin Bevans, the husband of Sally, and father of her children, was the son of Henry Bevans, who resided in Mid-dletown, in the state of New-York, from 1795 to 1803, where he gained a legal settlement, and where Benjamin was born ; and the paupers were legally settled in that town, when they were removed from Danbury to Stamford. The defendants offered evidence to prove, and it was not denied, that previous to-the year 1795, Henry Bevans had gained a legal settlement in the town of Stratford. The defendants claimed, that all their arts in procuring the removal of the paupers were done by tliem as select-men. The plaintiffs proved, that there were then seven select-men of the town, and that the other five did not concur with the defendants in applying to the civil authority for a warrant. The defendants insisted, that in applying for a warrant and in procuring the removal of the paupers, they acted in good faith and without fraud ; and that they had no knowledge that the paupers did not belong to the town of Stratford. They further insisted, that unless the jury should find that they knew that the paupers did not belong to Strat-ford, and so were guilty of actual fraud in procuring their removal, the plaintiffs could not recover, and prayed the judge so to charge the jury.
    The defendants also claimed, that if the jury should find, that the warrant was issued by the civil authority, and that the paupers were removed by virtue thereof, and t>y direction of the defendants as such select-men ; yetas such warrant was conformable to the requirements of the statute, and as it appertained to the civil authority to judge of the lawfulness and expediency of granting it, their verdict must be for the defendants, unless they should find, that the defendants made application without probable cause, knowing that the paupers had no legal settlement in Stratford; and the defendants prayed the judge so to instruct the jury. The judge instructed the jury, that it being admitted, that the paupers, when removed, had no legal settlement in Stratford, and were then a charge on Danbury, if they should find, that the defendants procured their removal, in the manner claimed, the plaintiffs were entitled to recover.
    The jury returned a verdict for the plaintiffs; and the defendants moved for a new trial, on the ground that the interlocutory decisions of the judge and his charge to the jury, were erroneous, and also in arrest of judgment for the insut'Ii-ciency of the declaration. •
    
      Bettn and Booth, in support of the motions, contended,
    1. That that part of the deposition of Starr, which was objected to, was inadmissible, the question being a leading one, ami such as could not be put. 1 Stark. Ev. 122, 3 — 5. 1 Phill. Ev. 205.
    2. That the voté óf the town of Danbury was inadmissible. In the first place, it was not evidence as the admission of •> party ; Danbury not being a party. Secondly, the vote, by its terms, related to the select-men, — i. e. all or a majority of. them, and did not purport to affect a minority. The defendants are but two out of seven. Thirdly, the vote was not binding on the town. It was not a grant or an agreement, but a mere resolution, without consideration, which the town could rescind at pleasure. Besides, it offered an indemnity for the performance of an unlawful act, (as the plaintiffs claim ;) and on that ground, it was not binding.
    3. That the charge was incorrect as to the rule of damages. The only ground on which damages are claimed, is, that the plaintiffs were obliged to support the paupers. But this they were not obliged to do, after a reasonable time for their removal had elapsed. Secondly, there could be no recovery for damages which accrued subsequently to the commencement of the suit. 2 Wms. Saund. 171. c. Com. Dig. tit. Dam-D. Denison v. Hyde & al. 6 Conn. Rep. 509. 519, 520.
    4. That upon the facts claimed by the defendants, as stated in the motion, this action cannot be sustained. The application of the defendants to the civil authority, was a lawful act. It was the right of the civil authority to judge whether the application was properly made ; and their determination is to be regarded as a judgment. In carrying the warrant to the officer to be executed, acting as the defendants did in good faith without fraud, they went on a lawful errand. Upon the facts claimed by them, they did no unlawful act; and the jury should have been so instructed.
    5. That upon the facts stated in the declaration, this action cannot be sustained. In the first place, the plaintiffs cannot sue. Towns are corporations; and as such, have such rights and powers, and such only, as their respective charters and the general statutes relating to towns, have given them. Had the legislature prohibited the act complained of, under a penalty, and given that penalty to the town aggrieved, the plaintiffs might have sued for it; but the fact is otherwise; and this foundation failing, the plaintiffs have none to stand on. 4 Com. Dig. 871. (Day’s ed.) Crouse v. Mabbelt & al. 11 Johns. Rep. 187. Besides, the action is not brought on any general statute or private act. Secondly, the defendants are not liable at common law. If the act done was not unlawful, it is immaterial with what intention it was done. Now, it was clearly lawful for the paupers to go from Danbury to Strat-
      
      ford: and it was equally lawful for the defendants to trans- . port them thither. 3 Burn’s Just. 380. Masters v. Child, 3 Salk. 66. Crouse v. Mabbett & al. 11 Johns. Rep. 167. Jenkins & al. v. Waldron, 11 Johns. Rep. 116. Rous & al. v. Moore & al. 18 Johns, jfiep, 407. Grant & al. v. Rancher, 5 Cowen 309.
    
      N. Smith and Sherman, contra, contended,
    1. That the deposition of Starr was properly admitted. In the first place, it was not exceptionable as containing a leading question. A general question was first put; and the witness could recollect nothing about the matter. A more particular question was then put, to awaken the witness’s recollection. This is the usual course ; it is a proper one, and necessary for the investigation of truth. But secondly, were it otherwise, this is a mere matter of discretion in the court, and not a ground lor a new trial, 
    
    2. That the vote of the town of Danbury was properly received. The action proceeds on the ground that the paupers were removed for the benefit of the town; and it appears, that the town had assumed the defence, and become the principal. The defendants were only agents. The vote was the act of the real party. It admitted that the defendants did transport the paupers ; and thus conduced to prove the charge. 2 Stark. Ev. 41.
    3. That the charge was correct in relation to damages. The act complained of is the wrongful removal of the paupers. For this there can be but one recovery. The verdict must. embrace all the damages immediately resulting from the wrongful act; otherwise the plaintiff may be partially remedíless. Though no act done subsequently to the commencement of the suit, can constitute a ground of recovery; yet in the estimation of damages resulting from an act done before, the jury may take into view the whole injury sustained. The plaintiffs were under no obligation to search for the paiq < i -, place of settlement, and to x-emove them to it. At any rate, the defendants cannot claim this of them.
    4. That the charge was correct as to the liability of the de- f fendants. Even upon the facts claimed by them, they did an ¡ Whether their ... no difference with unlawful act, to the damage of the plaintiffs, motives were pure or impure, makes spect to the right of action. The fact that they were selectmen, does not shield them. Without insisting on another fact, .viz, that the defendants were only two out of seven selectmen, — a majority or all of the select-men are agents of the town to do only what the law has authorized them to do ; and beyond this their official character has no effect. The Thames Manufacturing Company v. Lathrop & al.'7 Conn. Rep. 550. 557. Nor can the defendants derive any justification from the act of the civil authority. They acted ministerially. They rendered no judgment: their determination was not res adju-dícala. They could not, indeed, act judicially, being interested. »
    5. That the declaration was sufficient. It states, in both counts, a wrongful act of the defendants, — done too with a fraudulent intent, — and an injury to the plaintiffs resulting immediately therefrom. Here is every ingredient of an action on the case.
    
      
      
         One of the counsel for the defendants here said, that this objection would not be further insisted on,
    
   Hosmer, Ch. J.

The action of trespass on the case, which

the plaintiffs have brought, is a universal remedy given for all personal wrongs and injuries without force ; and in general, it is sustainable, whenever the plaintiff has suffered damages, by the wrongful and illicit conduct of the defendant.

That damage has arisen, in this case, from the defendants’ act, is a fact clearly stated ; and the only enquiry is, was the act injurious or wrongful ? It is not necessary, that it should be perpetrated through fraud, as in the argument was contended ; for this is one species of wrong only. Every injury to another is entitled to a remedy ; and it is no matter of what description the fact is, if it be a wrong accompanied with damage. This constitutes it a legal injury ; and every injury of this description, is equally to be vindicated, by its appropriate remedy.

, The first count in the plaintiffs’ declaration, avers, that damage has accrued to the plaintiffs, by the act of the defendants, who intentionally transferred to them a burden, that rested on Danbury, and on the defendants as inhabitants of that town, The act is equally immoral and illegal. It is neither compati-with private justice nor public convenience, that individuals should thus relieve themselves, and the town in which they reside, by easting their misfortunes on others. It is their duty to bear them, until they legally can redress themselves.

Jn respect to the second count, the defendants are, in no degree, relieved from the principles advanced. The warrant for removal, obtained, is no justification. It is a ministerial act only, obtained by the false representation of the defendants. There is nothing in it of a judicial nature ; nor in this state, has it ever been so considered. In a court or forum for the administration of justice, there are three constituents; the actor, reus, and judex. Here, there was no actor, or plaintiff; no reus, or defendant; and no judex, or judge. The civil authority have confided to them, without calling in the party in interest, and without any legal mode of revising their doings, a ministerial act, on the application of personshaving an interest. In England, and in the state of New-York, where the proceeding is held to be judicial,'there is a legal mode by appeal, and in a strictly judicial manner, for the administration of justice between the parties interested; but it is not so here. The appointment of appraisers by a justice, or of an overseer by selecf-men, is as much of a judicial act, as is the issuing of a warrant for the removal of paupers. Hill v. Fox, 1 Conn. Rep. 295, Betts v. Dimon, 3 Conn. Rep. 107.

Were it necessary, it would: not be difficult to show, that the abuse of judicial process, fraudulently obtained by a false representation, would not justify the defendants.

• It has been said, that the rights of corporations depend on their charters ; and that no authority is given for the maintenance of actions at common law.

The principle alluded to is misconceived. Undoubtedly, the legal capacity of a corporation, is alone created by the sovereign power- It cannot act as a corporation, nor hold land or property, nor do any thing else, until it is legally authorized. But where it is duly constituted, and has imparted to it certain rights and privileges, it is a moral person, and may vindicate and preserve all its rights, by the common and statute laws, as all other persons may, except so far as it is restrained, by its charter, or by express law. The error of the defendants’ argument, consists in confounding the rights of a corporation, with the mode of vindicating them. 15 Johns. Rep. 383. In the latter, the laws are open to them for redress, usually, as for other moral persons.

It has been argued, that as the paupers might voluntarily

have gone to Stratford, so may the defendants remove them thither. Between these cases there is no analogy. -The pauper goes to a town, without hny obliquity of intention ; for to him it is immaterial, by what corporation he is supported. But the defendants acted on the unjustifiable principle, of obtaining the removal of a burden from themselves, and casting.it, without any reason, upon another. And if such conduct is authorized, it is easy to perceive, what instances of inhumanity and inconvenience, it may occasion.

Such of the cases cited by the defendants, as are entitled to consideration, I will now attend to. The case of Crouse v. Mabbelt & al. 11 Johns. Rep. 167. has no bearing on the question under discussion. It was a suit for the bringing of a pauper into a town, who afterwards fell sick, and became a public burden. There is no fact stated, from which it appears that the pauper had required, or would require relief; or that his sickness was at all anticipated. No wrongful act was done, unless it be wrong to accompany a poor man into a town.

The case of Jenkins & el. v. Waldron, 11 Johns. Rep. 114. was an action against the inspectors of an election, for refusing a vote, as the exercise of deliberate judgment, and without malice. That such a suit was not sustainable, is not to be questioned. The inspectors acted involuntarily, in the necessary exercise of their duty, and were obliged to accept or reject the vote. But not so the defendants. They were voluntary agents, in no matter of prescribed duty, and acting from obliquity of motive.

The Overseers of the poor of Pittstown v. The Overseers of the poor of Plattsburgh, 18 Johns. Rep. 407. has no bearing on this case. The latter obtained an order of removal of a pauper, adjudicating his legal settlement to be in Pittstown; the order was quashed; and having been removed pursuant to it, the action was brought for not supporting him or taking him back. The court adjudged, that the order of removal, it was presumable, was bona fide; and that it was the duty of Pittstown to remove the pauper back to Plattsburgh, and therefore, that the action was not sustainable. Had the order of removal been obtained mala fide, as was the one in the case before us, the determination probably would have been different. Even as it was, it was said by Spencer, Ch. J. (p. 419.) that he thought it ought to have been made the duty of the overseers of Plattsburgh to take back the pauper at their own expense. The same case had been before the same court, at a former term, (15 Johns. Rep. 436.) when it was a fact admitted, that the pauper had no legal settlement in the state of New-Tor It. It was by the court then adjudged, that the action was maintainable, on the principle, that a, burden had unjustly been thrown upon Pittslown, by the procurement of the overseers of the poor of Plattsburgh ; and that the pauper having no legal settlement in the state, it was their duty to have exonerated Pittstown from the burden they had cast on them. And the difference in the above determination rested on this ; that at one hearing, the pauper was supposed to be settled within the state, and instead of an action, it was said, he ought to have been removed to his legal settlement; but at the other hearing, when the pauper was admitted to be settled without the stale, the action was held to be sustainable. On the whole, the determination clearly goes to establish the sufficiency of the plaintiffs’ declaration.

There exists no doubt, that the judgment ought not to be arrested.

I now come to the motion for new trial; and the first oh jection has been given up, and requires no discussion. I merely will remark, that although, as a general rule, leading questions are not allowed on the examination in chief; yet if 1 he witness appears to be in the interest of the other party, or unwilling to give evidence, the court will, in its discretion, permit the examination in chief to assume the form of a cross-examination. 1 Phill. Ev. 205. 1 Stark. Ev. 122 to 12. It is. then, not a peremptory and exclusive rule, but is always subject to the court’s discretion; and in all events, is not aground for new trial.

The next objection is made to the admission of the vote of Danbury, to affect the rights of the defendants. The objection, undoubtedly, is well founded, and ought to prevail. Danbury was no party to the action; and was not made such, by assuming the defence of it. There is no case determining a person to have become a party, on such ground. The cases of Bauerman & al. v. Radenius, 7 Term Rep. 663. and Bulkley & al. v. Randan & al. 3 Conn. Rep. 76. merely establish this principle, that the defendant may give in evidence the declaration or admission of the plaintiff on the record, to defeat the action, although the plaintiff appears to be only a trustee for a third person. But that a person may assume the defence of an action, and by virtue of such assumption, thrust himself in as a party, is a novelty, and without any ground of support.. The irrelevancy of a vote or agreement of indemnity, made six years after the commission of a tort, and to save harmless the tort-feasor; made, likewise, without his knowledge or consent, and without any apparent consideration, furnish other grounds of objection against the admission of the vote. It is, however, unnecessary to discuss them- As Danbury is no party to the plaintiffs’ action, the admissions or declarations by her, are hearsay only, and cannot be admitted to affect the defendants.

It has been insisted, that the defendants procured the removal of the pauper as select-men, and acted throughout in good faith ; and for these reasons, that the plaintiffs’ suit ought not to be maintained.

The answer to this has already been given. The defendants procured the removal of paupers, burdensome to Danbury and themselves, as inhabitants of that town, under a false suggestion, that they were settled inhabitants of Stratford, Either the defendants knew this, or had good reason to believe it, and very little or none to suppose the contrary. The paupers had never been in Stratford f were born in the state of New-York; and Henry Be vans, in whose right they make their claim, had resided in Middletown, in that state, from 1795 to 1803, where he gained a legal settlement. The slender pretext of the defendants, is, that before the year 1795, he was settled in Stratford. It is hardly consistent with good faith, that after the lapse of about thirty years, it should be assumed, without enquiry, that this absent man had not obtained another settlement.

But this defence, slight as it is, wholly fails. There were seven select-men in Danbury, and two of the select-men only concurred in obtaining the warrant of removal. The selectmen never applied for it, nor concurred in the transactions, on which the plaintiffs’ suit is founded. They were entirely the unauthorized and wrongful acts of individuals.

One further ground alleged for a new trial remains; and that is, the rule of damages. The court charged the jury, that the plaintiffs had right to recover damages, to the time of trial. On the contrary, it is argued, that it was the duty of Stratford to remove the paupers to their legal settlement; and hence, that they can recover damages only, for a reasonable time after their burden commenced ; that in all events, there can be no recovery after the date of the writ.

The legal settlement of the paupers was unknown to Stratford; nor was it their duty to go out of the state, in search after this fact. The law has devolved on them no such obligation. If they had gone in search of the paupers’ settlement, and either had or had not found it, their expense would form no item of claim against the defendants, as a compensation for their service.

To this effect is the cited determination from the state of New-York, (Overseers of the poor of Pittstown v. Overseers of the poor of Plattsburgh, 15 Johns. Rep. 436.) advancing the principle, that where a removed pauper has no settlement' within the,4 state, it is the duty of the party removing to exonerate those who have an unjust burden cast upon them. This is in analogy with the most common and familiar principles. If a stick of timber is tortiously put on the land of another, he may remove it, if he pleases; but if he does not, the trespasser must pay damages, so Ipng as he suffers the timber to remain. If the plaintiffs might bring their action toties quoties, the rule that damages shall be limited to the commencement of suit, would apply. But in this case, the recovery, as in trespass for assault and battery, exhausts the entire cause of action. All the damages, then, sustained by the plaintiffs, to the last moment of estimating them, are justly recoverable.

In result, a.new trial is advised, only for the admission of the vote of Danbury in evidence.

The other Judges were of the same opinion.

New trial to be granted.  