
    
      The Town of Burlington v. The Town of Calais.
    
    That the confessions of the overseer of the poor and agent of a town, made while executing his agency, may be proved as evidence against such town.
    *£hat a year’s residence under the settlement act of 1797 does not require that the pauper should be constantly with his family, provided their place t>f abodd remains his domicil.
    That coining and residing within this slate., ih the first section of said act, does not require a coming frbrn another state, but a coming from any place to the town to be charged is sufficient. * 4 f
    This was an action bf Assumpsit,brought to receiver the expen* 6itures of the plaintiffs in support of one Salmon Davis, under the eleventh section of the settlement act. Two questions wereprin* cipally agitated on trial, 1st. Whether Calais was the place of Davis' last legal settlement ?■ and 2dly. Whether proper testimo* Hy was adduced by the plaintiffs, to prove notice of their expen* ditures, before, the commencement of the action, The plaintiffs contended that Davis tyas legally settled in Calais by his resi* dence there while the statute of 1787 was in force : and if not then, that he gained such settlement after the statute of 1797 came into operation. There was a jury trial in the County Court and exceptions taken to the decisions made on said trial; upon which tile cause was brought to the Supreme Court. With regard to what occurred during the statute of 1787, the whole was so left with the jury that no exception is now urged which applies solely to that part of the Case. The exceptions allowed,so far as they present the questions urged before the Supreme Court,are as follows, to wit: “ The plaintiffs adduced testimony tending, to show that said Davis in September, 1796, removed with his family from Calais to Waterhury, in Vermont, and remained there until May, 1797, when he returned to Calais, and with the consent of his brother Phineas Davis, moved into the house he first built, left his family there, and immediately went off to the Eastward, for the purpose of looking up a place to settle — that he was absent about one year, and then returned to Calais, where his family resided, and remained at Calais a short time, and returned again to the Eastward ; that he was hack an.d forth, and in the fall of 1799, he purchased mills in the province of New Brunswick, and jn 1801 he again returned to Calais for his family-remained there a few days,and on Some of the last days of September of that year, he removed from said Calais with his family to the province of Maine, and was absent until 1822,when he removed to Essex,in Vermont — that his longest absence from his family, while they were at Calais, was not a year. When he returned from Waterhury to Calais, he he did not hire a house for his family, but moved them into his old house as above stated, and said that when he went away to the Eastward he carried all his property with him-That he was never taxed, or paid any taxes, in Calais after he returned from Waterhury, nor before that time; except that he worked voluntarily upon the highways, there being no regular taxes until after the town was organized. The plaintiffs proved the amount of the expenditures, and that they wrote a letter to the defendants soon after the pauper was committed to prison in Burlington, informing them that they should call upon them for payment of the sum of money paid out for bis support. John C. Thompson Esq. produced copies of the letter and offered himself as a witness to prove that Shubael J¥heeler,as agent of the town of Calais, admitted at a justice court that the defendants had received the letter aforesaid. This testimony was objected to by the defendants and admitted by the court — And he testified to the acknowledgment of said Wheeler to the fact at, and after, the trial. Said Davis further testified, that when he went to the Eastward to find a place to settle in, he intended to continue at Calais, unless he found a place that suited him. ,
    The defendants in support of the issue on their part introduced evidence tending to prove that saidl Davis, after he returned from said Waterhury to said Calais,owned no property, and that he did not retu'rn to Calais for the sake of making a residence there, but only left his family there until he could find a place of residence.
    The counsel for the defendants requested the court to charge the jury — 1. That the said Davis could not gain a settlement in said Calais, under the act of 3d of March 1797, by residing in said town one whole year without owning any property therein, or having rented and occupied a tenement of the yearly value of $20, -or upwards, for the term of two years, and actually paid such rent — or having executed some public office or charge in said town, during one whole year, or having been charged with, and paid, his share of the public rates or taxes of said town for the space of two years —and that the last clause (except one) of the first section'jof the act of the 3d of March, 1797, applies only to such persons as come from abroad into this state,after the passage of said act,or after the time it went into operation, and should have resided one whole year thereafter in some town within this state. 2. That if the said Danis brought his family from Waterbury to Calais, not for the purpose of making Calais his place of residence, but only for the purpose of leaving them there until he could find a place of residence for himself and family, and did leave them there, and directly thereafter go without the state, in search of a place of residence, and continue absent (except one short visit to his. family in 1798) until he found a place of residence, and returned for his family in September, 1801, and immediately thereafter removed them without the state, he could not gain a settlement in said Calais,nor his family gain one for him. 3. That the declarations and acts of the pauper, at the time of bringing his family from Waterbury to Calais, are to be considered as conclusive evidence of his intentions, whether to make a permanent residence there, or not--and that one year’s residence, required by the act of 1797, should be an actual continued personal residence of the pauper for one whole year.
    Whereupon said County Court refused to charge the jury as requested by the defendant’s counsel,but charged them asjfollows, to wit, — “That in ascertaining the facts in controversy they must weigh the testimony of said Davis, in connection with all the impeaching and corroborating testimony;and if theyjshould find that the pauper, when he moved his family from Waterbury to Calais in 1797, or 1798, and went to the Eastward to find a place to settle, as he terms it, intended they should reside at said Calais until he should find a place to remove them, and that his ab-scences from his family were to find a place-to settle, as he testifies, and that his family actually resided in said Calais more than a year at one .time, after the fall of the year 1798, and ha fore their removal to the Eastward in 1801, Davis himself visiting them, as he has testified — that gained him a settlement in Calais, the same as it would have done had he been at Calais with his fam-ing during the same year; but that, if there was not sucha full year’s residence, as last described, he gained no settlement in Calais, alter his return from Waterbury to Calais — That, if they found that the pauper had thus gained a settlement in Calais,they would return their verdict 'for the plaintiffs, otherwise for the defendants.” To which decision and charge the defendants excepted, and filed these their exceptions,which were allowed; and the case ordered to the Supreme Court for a hearing on said exceptions, and the execution in the mean time was staid.
    
      Griswold,.for the defendants. The question arises whether the pauper has ever gained a legal settlement in Calais, or even in any town in this state. It is believed that it was not, and will not be, contended, from the whole evidence on the trial, that he gained a settlement in Calais, during his first residence thereunder the provisions of the act of March 1787; although that question was by the judge left to the jury to decide. If, then, a settlement has been gained in Calais, it must have been under the act of the 3d of March, 1797. It is then insisted by the defendants—
    1. That in order to gain a settlement under the last mentioned act, the residence must be a personal, continued residence of the pauper for one year ; the wife and family being incapable of gaining a residence for him — And that the mere leaving a wife and children in a town by a pauper, and immediately thereafter absenting himself with all his property, and with the express declaration that it was his intention to leave them there temporarily,and only until he could find a place to settle himself and family,cannot be considered such a residence as will acquire a legal settlement.
    2. The requisites to be complied with under the aet of 1797, in order to gain a settlement, contemplate, in all cases, an actual, personal and continued residence, except an occasional absence on business, and not a constant and continued absence,and occasional return for a few .days in the course of three or four years. The person who owns .a freehold-estate or-rents a tenement,must actually occupy and improve the same. The person who holds an office must actually inhabit, and execute the office, in the town. The person who gains a residence by payment of taxes in any town must necessarily be an inhabitant, and actually reside therein : and the indented apprentice must also serve out his time within the town : — and can it be supposed that the Legislature intended that less should be required, as to the actual residence of a mere sojourner, than of those who own and rent property, pay taxes, execute offices, &c.?
    3. When a settlement is gained by a residence under the English Statutes, it must be an actual residence on the tenement rented, or in the town or parish where it lies; for a residence in one town or parish, and occupying a tenement in another, is not sufficient. So where settlements are acquired by a hiring in service for a year, the payment of public taxes, executing a public office, or being bound as an apprentice, are all predicated upon and require actual residence, — and the apprentice must inhabit in the town where his master resides. It ought to be here mentioned that the English Statutes exclude married persons from gaining a settlement by hiring and service for a year.
    4. The last clause of the first section of the act of 1797 waá intended by the legislature to apply solely to those who should thereafter come to, and settle and reside within, this state from abroad, with a view to encourage emigration, and to increase the population of the state. And the former requisites in the same section are to be considered as applicable as well to those who might thereafter come to reside from without the state, as to those already resident therein. This, then, being a proper., and sound construction of the act, the pauper did not come within any of its provisious, as he had, at the time of the passage of this act, lived in this state at least ten years.
    5. This action is predicated upon the 11th section of the act of March,1797; and in order to entitle the-plaintiffs to a recovery,notice should have been given to the town of Calais of the amount of expenses incurred in his support, and a demand of payment made, before action brought. In this case tire plaintiffs were admitted to prove the notice and demand, by showing the admission of the fact by the agent of the town at the .justice courts and his acknowledgment of the same af-terwards. The acknowledgments, or admissions of an agent or attorney, except for the time being,cannot be legally admitted as testimony* The agent in this case, as well as every other inhabitant, were competent witnesses to prove this or any other fact in the case.
    6. Although it does not appear whether the jury considered that the pauper gained a settlement under the act of 1787, or 1797 — yet if the charge of the court was erroneous on either point, or improper testimony was admitted, the verdict must be set aside and a new trial granted. Authorities cited. — Stat. of March 1787. — Id. 1797. — Ren. L. 369. — Stat. oj JYov. 1801. Ed. of 1808,400. — -Jacob's Law Dictionary, title Poor, 218 to 233. — 40 Mass. 394, Billerica vs. Chemlsford. — 13 Id. 501, Cambridge vs. Charlestown. — 14 Id. 384, Boston vs. Wells. — 6 Id. 501, Dalton vs. Hinsdale.
    
      J. C. Thompson, for the 'plaintiffs. The defendants contended, that the pauper could not obtain a settlement under the-act of 1797, by a year’s residence merely, and the court refused so to charge. Upon this point the plaintiffs contend, 1. That the means of acquiring a settlement,enumerated in the first part of the 1st section of the act of 1797, are applicable to all persons without reference to behaviour or health, and that the subsequent clause relates only to persons healthy, able bodied and peaceable, and that the Legislature intended that the Iatter,the last description of persons only, should gain a settlement by mere residence.
    2. The expression “coming and residing within this state,” See. and “in the town or place in which he or she shall have first resided,” include all such persons (with the above qualification) as , should come from any place whatever into any town, and there reside one year,under that act; and that such persons gain a settlement wherever they first reside one full year. The expression “ coming and residing within this state,” can no more be confined to persons coming from other states after the passing of the act, than the expression “shall come and reside in any town in this state,”, in the act of 1801, Old Stat 1 uol. 400., The words “within., this state” are mere surplussage — they are in almost every section of the numerous acts on this subject. The words “ who shall !bave come to reside in such town or place,” in the 3d section, and the words, “town or place in this state,” in the 2d section of the act of 1797, taken in their .necessary connexion, amount to the same as the above expression in the 1st section. Do the words “ shall bring into any .town or place in this state,” in the 11th section, include those only who shall bring persons from another state? — 1 vol. 388. — New Stat. .382, sec. 2. Expressions, .similar to those in the first section of the act of 1797, are to be found in 1st, 2d,3d & 4th sections of the act of 180LThe 1st section of the act of 1797, includes those who came before, as well as .those who came after, the passage of the act to reside in any town.
    3. The charge of the Judge,relative to the character of the residence, was correct. Every man’s residence is where his family reside, until he entirely abandons. A temporary absence, while he intends to return, will have no effect.
    4. Sufficient notice of the claim was shown by proof of the ac-knowledgement of the agent while executing his agency.'
   Hutchinson, J.

delivered the opinion of the Court, first concisely stating the case.

The points now in dispute are reduced to a narrow compass. Supposing the plaintiffs to have a just claim upon the defendants for the support of Davis, the pauper, while confined in the common jail, in Burlington, have they shown a proper notice of their claim before the commencement of this action ? About this there is no dispute, if the testimony offered by, the plaintiffs to that point was legally admissible. It seems that a letter was sent by the mail to the overseers of the poor of Calais, containing the proper notice of the expenditures, and requesting payment. And, to prove that this letter was received, the plaintiffs offered, and the Court admitted, proof, that, at the trial of this cause before the magistrate^ Mr. Wheeler, one of the overseers of the poor of said Calais, and the acting agent to defend this suit, acknowledged that he had duly received the letter; that he fully acknowledged this, while attending the Justice Court, during and immediately after the hearing of the cause.

It is objected that this testimony was not admissible. The doctrine is well settled, that the sayings of an -agent while executing his agency, form a part ofthe'féí gesta> and may be proved against h& principal: but the after confessions of such agent, about the? ( facts of the case,may not be thus proved ; but the party wanting the-proof must call the agent himself, or other witnesses to what actually transpired at the time. In 1st of Camp. R. 140, Young et al. vs. Wright, cited in Peake, 36, it is said what an attorney admits on'the record, to obviate the necessity of proving it, binds his client; for he will be presumed authorized. The acknowledgment in the present case, though not made of record, was made to obviate the necessity of proof, and that at the time and place of trial, and while Wheeler was executing his agency as overseer of the poor in defending the same suit, preparatory to> which the letter was sent. It is urged, however, that Wheeler* might have been called as a witness by the' plaintiffs. So may any one, who acts merely as agent, pe called at any time to prove what transpired connected with his agency, Wheeler, though ant inhabitant of Calais, is made a competent witness by statute, and could not refuse to testify if called by the plaintiffs ; yet it would ■ be going too far, to compel the plaintiffs to bring' him to' court,and use him as a witness, when he, in the execution of his agency,' has furnished such testimony as that adduced in the present case.This exception is overruled.

' We proceed to enquire whether the charge of the court was correct with regard to the residence of said Davis, and his gaining a settlement after the statute of 1797 came in force? The testimony was,that he left his family in the log-house in Calais,where he had formerly lived, before he moved to Waterbury, and went to the eastward with a view of finding a place to which he would remove his family; that he visited his family several times j was not from them a full year at any one time; that he found no place to which he concluded to move his family till the year 1801; that during all that time, he intended living' in Calais, unless he' found a place that suited him somewhere else. In all this,there is no making of any rest at any one place without a view of settling there. Where his family 'was, must have been his domicil,or he hadnoné. This is not like the case of Raymond, cited from .Mass., Reports. He left his family in Vermont,and took up his residence - to Massachusetts, with a view to move his family there as soon as convenient. — Nor is it like the case of Bilerica and Chelmsford, where the pauper actually moved his family with a view to settle and never return, but moved back after three months. Davis’ domicil being in Calais, from the time the statute of 1797 came into operation, until the latter part of September, 1801, when he moved with his family to the then Province of Maine, we think this such a residence as would gain a legal settlement in Calais.

But the defendants insist that, as Davis, when he last moved to Calais, had not newly come into the state, but moved from Wa* terhwry, another town within the state, a year’s residence would not gain him a settlement. The first section of this statute, (see page 369,) describes the various ways, in which a person may gain a settlement in any town. 1. The purchasing, paying for, ¡jnd occupying for a full year, a freehold estate of the value of 100. 2. Renting a tenement, and occupying two years, and paying a rent of $20, or upwards. 3. Living in town,and executing a public office one whole year. 4. Having paid his share of the public rates or taxes, for the space of two years. 5. Having been bound,and served as an apprentice not less than three years before coming of age. It then adds, 6thly. And every other healthy, able bodied person, coming and residing within this state, and being of peaceable behaviour, shall be deemed and adjudged to be legally settled in the town or place in which he or she shall have first resided for the space of one whole year.” It is contended that this last provision extends only to persons newly coming into the state. And this idea is enforced by the argument, that, upon any other construction, it would render some of the former provisions useless. This argument is not without weight; yet ws are unwilling to believe the legislature, at so late a period as the year 1797, would designedly make such a provision for the mere purpose of encouraging emigration; especially when it could have no such effect whatever. Every person moving from without the state into any town within the state, has a legal settlement in such town forthwith, so far as relates to the liability ' of such town to furnish their support: that is,; if they are in want, the town must maintain them, and cannot remove them to the place whence they came, it being out of the state; nor to any other town in the state, because they have no residence there. We cannot, therefore, presume that the legislature would make such a provision for an object that would not be effected by it. This last provision might have been introduced as an amendment to the former parts of the section, without a full consideration, how far it might absorb the former provisions. Yet even this may not be so; for'the former provisions have no regard to the question of good or ill health, nor to the question, whether a person should be able bodied when - coming into any town to reside. Hence the legislature may have intended to make health and strength of body as good a qualification for a settlement, as a certain amount of property, used' in a prescribed manner. Furthermore, the provisions about towns, in that statute, all relate to towns within this state; towns over which the laws might have effect, and between the rights of which,courts might adjudicate and give effect to their decisions.

That statute looks forward exclusively. It makes provision for •the future gaining of a settlement. The expression “ coming and ¡residing in the state,” is indefinite and must be inoperative, till we . pass on to the expression of the place within the state: that is, the town -in which there is first a residing a full year. That may alike mean, the first, after the act comes in force, or first of their residing in any town. This, probably, ought to be construed, according to its spiritand meaning. As applied to those who should afterwards change their residence, it means the town into which they remove. As applied to the inhabitants that were stationed when the act passed, their remaining where they were, and being healthy and able bodied, brings them within the act. It is not to be presumed that- the legislature intended to repeal all former modes of gaining a settlement, and not make provision for those inhabitants, that had not yet gained a legal settlement, though they had become stationed for life. Nearly the same expression is used in the warning-out statute ; and hyone mode of construing, that might only refer to such as should, after the passing of the act, change their residence. But the Supreme Court have put a construction upon that statute. They have decided that persons residing in any town when the act passed, and who continued to reside there a full year, without-being warned out, gained a se.t-tlement. Their being and residing is tantamount to their coming and residing. That extends the provisions of the statute to all who had not gained, a settlement before the act passed. Asettlementwouldbepre vented by a warning; and would be gained, if the warning was neglected. That decision fully supports the construction we have now given to the statute of 1797.

Thompson, for plaintiffs.

Griswold, for defendants.

Upon the whole view of - the case, we approve the instructions given to the jury on the trial, and the judgment of the County Court is affirmed.  