Newbit v. Inhabitants of Appleton , 63 Me. 491 ( 1874 )

Peters, J.

The defendants contend that the “notice and request,” required by R. S., c. 24, § 82, to enable an inhabitant to recover of a town the expenses incurred in support of a pauper, is insufficient, if made to only one member of the board of overseers. The language of the statute is, “after notice and request to the overseers.” The decision of this point depends upon the further question, whether it is the duty of one overseer, when such notice and request is made to him, to communicate it to the other overseers. A notice to one overseer may well be supposed by him, as intended as well for his colleagues as for himself. Having no clerk or records of proceedings, overseers should interchangeably inform each other of any and all matters pertaining to their official duties, which may come to their knowledge individually. We think a fair and practical construction of the statute requires them to do so. In this view a notice of the kind in question given to one overseer may properly enough be regarded as a notice to the entire'board. It is upon the same principle that it was early held, that a knowledge upon the part of individual inhabitants of a town of a defect in a highway was a sufficient notice to the town in its corporate capacity. It being the duty of such inhabitants to communicate such knowledge to the executive officers of the town, they may be presumed to have done so, or the whole inhabitants are in fault for their neglect. As between towns, the written notice required to be sent by one board of overseers to another must ordinarily be received by a single officer in the first instance, and the notice would practically be to him alone, unless communicated by him to his fellows. The precise question presen ted in this case does not appear to have been decided in any judicial opinion in this State. In Perley v. Oldtown, 49 Maine, 31, cited by plaintiff, the same point was involved in the facts, but does not seem to have attracted the attention of either the counsel or court. But in Rogers v. Newbury, 105 Mass., 533, the point is distinctly raised, and settled in accordance with our determination here. The case of Underwood v. Scituate, 7 Metc., 214, is in the same direction, as far as it goes. The case of Ilsley v. Essex Co., 7 Gray, 465, is not in conflict with it. There it was decided that a written notice, served upon one county commissioner, was not sufficient to charge the county with the penalty imposed by the statute for the neglect of the commissioners to erect bounds at the termination and angles of a county road. But county commissioners have the use of an official clerk, and keep a record of their doings, and have stated meetings for business. Any notice or requests upon them would, therefore, seem to be appropriate, ordinarily, only as made upon them in open session while acting as a court. A heavy penalty was involved in that suit, which further distinguishes it from the case at bar.

Upon the facts, the plaintiff’s case was, perhaps, not a strong one; but the jury, under proper instructions in all respects, have pronounced it sufficient, and we are not convinced that it is not right. Motion and exceptions overruled.

Appleton, C. J., Cutting, Walton, Barrows and Danforts, JJ., concurred.