Inhabitants of Ripley v. Inhabitants of Hebron , 60 Me. 379 ( 1872 )

Kent, J.

There are two bills of exceptions .in this case, presented and allowed at different terms. The first relates exclusively to the allowance of an amendment of the declaration. The suit is to recover a sum named for the support of a pauper. The allegation in the declaration was, that the pauper fell into distress on the second day of December, a. d. 1868. The plaintiffs moved to amend by inserting the year 1867, as the time, when the pauper fell into distress. The judge overruled the objection made by the defendants and allowed the amendment, and granted a continuance at the motion of the defendants. The defendants except to the allowance of the amendment.

The exception can only be sustained by establishing the proposition, that it was such an amendment as could not be legally authorized by the presiding judge. Or, in other words, that it was beyond the power of the judge to grant it under any state of facts.

The first question is, whether this allegation of a particular day, on which the pauper fell into distress, is one that the plaintiffs are bound to prove, exactly as laid in the declaration.

The action is assumpsit, on an implied contract. It seems to be well settled, by a long series of decisions, that while an allegation of time is necessary in all declarations on a promise, it is not necessary to prove the day as alleged, except in case of the date of a written contract, named as bearing a particular date. In other cases, proof of the facts upon which the plaintiff rely, is admissible and sufficient if within the time of the statute of limitations.

In the case of Little v. Blunt; 16 Pick. 365. Mr. Justice Wilde, who was eminent as a pleader of the old school, says, ‘ The general rule is, that in all torts and parol contracts, the day when the tort is alleged to have been committed, or the contract made, is not material; and if the defendant makes it material by his plea, the plaintiff may reply another day, and it will be no departure, and the same principle applies to a case where it becomes necessary to prove when a contract 'was made, and it does not agree with the time alleged in the declaration.’

Chitty states the rule in similar terms, and concludes thus: ‘ In assumpsit upon a contract, the day upon which it is made being alleged only for form, the plaintiff is at liberty to prove that the contract, whether it be express or implied, was made at any other time.’ He also says that ‘ the declaration must, in general, state a time when every material or traversable fact happened. The statement of the real or precise time, however, is not necessary even in criminal cases, unless it constitutes a material part of the contract declared upon, or unless the date of a written contract or instrument is professed to be described. 1 Chitty on Pl., 257; Coxon v. Lyon, 2 Camp. 307; Phillips v. Shaw, 4 B. & Ald. 435, where it was held that where there is an allegation of a substantive matter, going to make up the necessary points of the case, and not a mere description of a record or paper, the allegation of time is immaterial, even when clearly erroneous. Miller v. Walker, 2 Saund. 5, (note).

In the case before us, the essential allegations to sustain the implied assumpsit, are these. That the person named fell into distress and was unable to provide for himself; that the plaintiffs furnished supplies to him as a pauper, and the amount of the same; that due notice was given to defendants; and that the pauper at the time had his legal settlement in the defendant town. The mate rial points are, pauperism — needed supplies furnished — notice— legal settlement. These being established, the law holds the defendants as on an implied promise to pay the amount reasonably incurred for such aid and relief. Time is not essential, provided it is within the statute of limitations applicable to such a case. The action is instituted to recover for supplies furnished a pauper. The time when he fell into distress is to be proved by parol, and therefore does not come within the exception of the date of a written instrument. The allegation is of a substantive matter, going to make up the necessary points of the case, and appears to be within the cases cited and the rule of the common law. If the time is not material within this law, the amendment could be allowed, although not absolutely necessary.

But it is farther objected that the amendment enlarged the claim, as stated originally in the writ, and, therefore, could not legally be allowed. The claim, as stated, is for four hundred and nineteen dollars, expended for the relief of this pauper. No account is annexed and no specifications of dates or items. The claim is not enlarged by the amendment. It still stands for four hundred and nineteen dollars only. Whether furnished one year or another, all that can be recovered in this suit is the amount furnished within the time of the statute of limitations.

It is true that the declaration, as it was drawn, stated that the pauper fell into distress on the second day of December, 1868, and that the plaintiffs then and there, and from that date to Nov. 24, 1869, furnished and continued to furnish supplies! But if the time was immaterial and could be amended, the subsequent allegations must follow the amendment and conform to it.

It is not a case where an account is annexed to the writ, containing specific items, and dates and amount, and an attempt is made to enlarge the bill by the addition of new items, or of items of an earlier date. The claim here is for a sum named, and no request to enlarge it. We have seen that the claim is, in substance, for supplies to a pauper, within the time limited by statute. The exact day when they were first furnished, need not be proved as alleged. Of course the time when the subsequent supplies were furnished must follow the same rule.

The case of Parkman v. Nutting, 59 Maine, 398, was one where the account annexed was for items of cash beginning Jan. 15, 1864, and the specification in the writ was, that the plaintiffs claim to prove and recover the sum of sixteen thousand dollars, that amount of money delivered him on the 15th of January, a. d. 1864, and since, according to account annexed. The plaintiffs asked to amend by enlarging the claim, so as to enable them to recover amounts received since' Jan. 1, 1863. The court held that this manifestly introduced a new cause of action, as it would enable the plaintiffs to recover, not only for all they had claimed in the writ, i. e. all monies received after January, 1864, but in addition thereto, monies not claimed or covered by the declarations and specifications. The amendment was, therefore, not allowed. The court decided that it was introducing a new cause of action, and, being such, it could not be allowed. But here no new cause of action is introduced and no enlargement of the real claim made, which is for a specified sum for pauper supplies.

The first exceptions must he overruled.

The case was tried at the next term, and another bill of exceptions was then allowed, and is now to be considered.

The first exception relates to the admission of certain testimony. The great question in the case was whether the pauper had had his home for five consecutive years in Ripley; and the decision of this question turned mainly on the facts connected with the commencement of his residence, and on those relating to two undisputed absences, during the five years. Jonathan I. Seavy, called by plaintiffs, was allowed to testify against the objection of defendants, in substance, that the pauper came to his house in March, 1863, and wanted to stay a spell, but witness declined to allow him to stay buha short time, stating to him the condition of his family, as the reason for thus declining. He also stated that he brought nothing with him, except the clothes he had on.

This evidence was pertinent to the issue, and bore directly upon the question of the nature, extent, and character of the pauper’s residence in Ripley. It was not hearsay, nor mere declarations, but evidence of facts, important and legitimate, going to prove the character of the residence.

The same witness, under a like objection, was allowed to testify as to a bargain which he heard made between the pauper and one Kennedy. The case finds that the pauper, in the same month of March, 1863, -went from Ripley to Dexter to reside with Kennedy, where he remained about three weeks. It was claimed that this residence broke the continuity of the five years. It was, therefore, an important point to be determined, whether it was of such a character and with such intentions, and accompanied by such facts as showed that it did thus break in upon the five years of continued residence in Ripley.

The witness testified that he heard Kennedy, at the house of witness, and whilst pauper was staying there, make a proposition to the pauper to go and live with him, and if he would he would give him a home there as long as he wanted one. The pauper said he would think of it for a short time. Two days afterwards Kennedy came- again and renewed the same proposition, and Washburn (the pauper), said he would go, and he did go the next morning.

This is but evidence of a contract made between two parties —distinct and definite. It is not hearsay, nor mere naked declaration. It is certainly unobjectionable to prove under what agreement of hire or employment, or terms as to time or as to board, a pauper goes into a town, where the very question is as to the nature of his residence there, and whether temporary or not.

For the same reasons, we see no objection to the question to the witness, whether at the time the pauper left his house there was any understanding between them, and any authority given from witness to him that he might return to his house. The answer being in the negative, the evidence negatived the existence of a fact, which, if left in doubt or to inference, might go far to sustain the proposition that the pauper intended to return when he left.

There was a second absence at one Safford’s in St. Albans, and the witness testified to a similar kind of agreement between the pauper and Safford, before going, as to terms, etc. We see no distinction in the rule of law to be applied to the two cases. They both relate to an actual fact and bargain. The testimony of Mrs. Seavey simply confirms that of her husband, and comes within the same principles.

The defendants, on their part, offered proof of certain declarations of Kennedy, the man with whom the pauper lived in Dexter. They were offered as ‘ tending to show the purpose and intent 'of his being there.’ They were excluded. They were mere naked declarations of a third party, not offered to contradict him, for it does not appear that he was a witness. They were not evidence of any distinct fact or bargain, but mere declarations of this third party as to his understanding of the nature of the pauper’s residence with him.

The pauper was not present. Kennedy might have been a witness for either party. His naked declarations could not be given, unaccompanied by any act.

The exceptions as to the admission and exclusion of evidence must be overruled.

The other portion of this bill of exceptions, relates to the ruling of the judge at the trial on the question of residence. He instructed the jury that ‘ if a man, in removing from his place of residence, — takes all his goods with him, — if a man of family takes his family and household goods, all connected with him, then, in order to retain his home there while absent, it must be made apparent that he did not intend to change his home, but to retain it while absent, and to return to it when his temporary purpose was accomplished. That it is not necessary that there should be a distinct declaration of such purpose; that the purpose or intention may be latent in the mind of the party, and that the jury should determine what the actual purpose and intention were from all the evidence. The point to be established is, did he go away and remain for any length of time, and if so, did he intend to come back when he left and retain that intention during his absence; and this must be shown to the satisfaction of the jury.’

The same idea in substance was repeated several times, and the final instruction was, that ‘ where a temporary absence is shown, when the man actually takes away with him all that he has, and stays a longer or shorter time, in order to keep his residence in the town he left, it must be shown to your satisfaction that he intended to retain a residence in the town and to go back to it as his home.

In this case, the defendants having admitted that the pauper had originally a legal settlement in their town, that settlement remained until another was acquired. They undertook to establish this new settlement in the plaintiff town, by showing that the pauper had ‘ his home in that town for five successive years.’ It was not denied that more than five years had elapsed, after his first coming into Ripley. The question was, whether he had had his home there uninterruptedly for that time. It was not controverted that at two different times within the five years he had been absent for some weeks in all, taking with him all his possessions, and having no family or any house of his own, nor any place to which he had a right to return as a home, and that he had no home save where he worked, and no effects save the clothes he wore.

The defendants having undertaken to overcome the effect of the admission of a prior legal settlement, they were bound to satisfy the jury that the pauper had his home in Ripley for an unbroken, continuous term of five years. If broken for a month or a day, it was not within the statute requirement.

The rulings of the court become important as bearing on the point of the nature and effect of such absences, and were made as applicable to the facts developed.

When a man leaves a town where he has resided and goes away, and is no longer personally residing there, and leaves no family, nor property, nor place to which he has any claim, can he yet retain a home in the town he has left, and if he can, what is the criterion or test or fact that thus holds him to the place where •he is not in fact dwelling?

After all the decisions on this vexed point, is not the solution to be found in the proposition, that, notwithstanding all these indicia usually conclusive of abandonment, the home may still remain, if it is made to appear that the person when he left, did not intend to abandon it as his home, but did intend to retain his connection with the town as his home, during his temporary absence, and to return to it, as such, after accomplishing his purpose. It is the animus revertendi whilst it is operative and controlling, that keeps him a real, although unseen resident. It is the chain that binds him still to the town, although as a wanderer—

‘He drags at eacb remove a lengthening chain.’

But it must be a chain — one end of which remains fixed in the spot from which he started. And if one link be' broken by a distinct abandonment,of the intention for a day,

‘Tenth or ten thousandth breaks the chain alike.’

And this link may be broken at either end, at any moment within the five years; the intention to return may-be abandoned by mental action, and without any return to the place from which he removed. Hampden v. Levant, 59 Maine, 557.

When a man has thus left a town, and has, to human view, no habitation there, and no visible hold on it, the law does not assume, or presume that he intends a temporary absence, and has a continuing purpose to retain it as his home, and to return to it as his home at some future period. Nor does the law assume that he has no such intention as a legal presumption.

But it leaves to the jury to determine, upon all the evidence and all the circumstances and all the probabilities, what his intention and purpose were in fact. The party setting up the five years’ continuous residence, is bound to prove it. This is undoubted. If, whilst attempting to prove it a break in the actual residence is shown, it is for that party to establish such a state of facts as shows that'the legal home remained there, notwithstanding the absence. In other w'ords, the party is bound to make out his case, and if obstacles intervene, he is the one to remove them. The other party is not bound to prove a negative, or to show that an actual removal was no removal at all.

The rulings seem to be in accordance with the recent decision of this court in North Yarmouth v. West Gardiner, 58 Maine, 207, in which most of the cases are cited and commented on. It is unnecessary to discuss them anew.

The defendants requested certain instructions, which were not given in the language of the requests.

The first and last requests as to abandonment and intention have been sufficiently considered.

The second request asked for an instruction to the jury, 'that in our pauper law, intention does not necessarily imply mental action, but may be understood as implying those circumstances, and relations, or state of feelings, which have a tendency to lead a person to remain in, abandon, or return to a place of residence.’ And ‘ that if, from the consideration of the pauper’s circumstances relations, and conditions, his habits and associations, his object in going, and the duration of his stay, the jury should find it reasonable to expect he would return to Ripley, and should find that he did return accordingly, they should find that he so intended, at the time of his departure, and that the continuity of his 'residence in Ripley was not broken.’

The judge did so far comply with these requests, as to say to the jury, that there need not be any distinct declaration of inten tion proved; that it may be latent in the mind, and that the jury should determine what the actual purpose and intention were from all the evidence; and that the jury had a right to consider what it would be reasonable to expect, from all the circumstances, would be his intention, when that intention is not otherwise clearly proved.-

We think these instructions went as far in favor of the defendants as established principles would justify.

The court could not properly give the requested instructions as matter of law binding on the jury, and in effect deciding questions properly belonging to the jury.

All the exceptions in the case are overruled.

Judgment on the verdict.

Appleton, C. J.; Walton, Dickerson, and Danforth, JJ., concurred.