Inhabitants of Newtown v. Inhabitants of Danbury , 3 Conn. 553 ( 1821 )

Hosmer, Ch. J.

This is an action of assumpsit, for necessary supplies, administered to Sally, the wife of Adam S. Clark, a settled inhabitant of Danbury.

Four objections have been made to the determination of the court below.

It is, in the first place, contended, that for want of jurisdiction, the superior court should, ex officio, have ordered the cause to be stricken from the docket, on the ground that the matter in demand did not exceed seventy dollars. The declaration avers, that supplies had been advanced to the pauper, ¿mountingto 75dollars; and the sum of 100 dollars is demanded in damages; but the evidence shewed an advance of 23 dollars, 67 cents, only. To warrant the official interposition of the judge, in the manner requested, the matter in demand on the declaration must have been below the jurisdiction of the court. Now, the declaration is clearly on a subject matter within the cognizance of the court; and the objection is founded, exclusively, on the testimony ; which has never been considered a test of jurisdiction. The cases that have been decided relative to bonds, notes, book debts, and indeed to specialties of every description, have no bearing on the present question. They form a part of the declaration ; and when oyer is demanded of them, and they are exhibited, the court regard them as if they had been recited. To sustain the objection now made, a new principle must be adopted, rendering it requisite to dismiss every cause, in which the proof of the sum recoverable, should fall below 70 dollars.

It is next objected, that the items of supply were not exhibited to the select-men of Danbury, and of consequence, that there have not been legal notice and demand. I am aware, that an account, specifying the advancements made, has been held, by the superior court, in some instances, as indipensible : but this practice was founded in misconception. The law requires reasonable notice and demand only ; and these are merely matters of fact for the consideration of the jury, and not of law for the determination of the court. Any evidence convincing the mind, that the notice has been given, and tjie demand made, in an intelligible manner, so that the selectmen are fully apprised of what they are called on to answer, is in law sufficient; and reasonable notice and demand, at common law, have always been considered as proved by pa-rol testimony only.

If the law had required the exhibition of notice and demand in writing, my opinion on this point would not be varied. The rule requiring notice, is founded in good reason, and was introduced for the defendant’s benefit. The defendant, as a consequence, may always waive this privilege, on the established principle, that Quis-quis potest renuncian juri pro se introducto. The waiver may be express, or implied ; and, as the select-men oí Danbury, the agents of the town, and vested with full powers on this subject, explicitly declared, on the demand made by the plaintiffs, “ that Sally was not the wife of Adam S. Clark, and Danbury was not bound to support her,” they placed their defence on this ground, and impliedly waived particular notice. It was equivalent to saying, “ We care not for the advancements you have made, nor wish to know what they are ; they do not concern us ; and we shall not pay your demand.” It is equivalent to the waiver of goods and money tendered, when the creditor refuses to receive them ; and this is unquestionably legal, if the debtor was able to substantiate his offer, although the money or goods were not produced. 1 Selw. N. P. 171. Searight v. Calbraith, 4 Dall. 325. On the same principle, a tender in bank notes has been held sufficient, if the creditor did not object on that account. 1 Selw. N. P. 172.

The judge repelled testimony offered to shew, that the mother of Adam S. Clark, and his daughter by a former wife, were of ability to support him and his wife ; and this raises a third objection. The decision of the judge was undoubtedly correct. These persons were not bound to administer any support, to Sally Clark, their relative by affinity only ; and if they had been, their obligation would be, not to pay Nezetozon, but to reimburse Danbury ; and what is perfectly decisive, they could only be compelled to advance such sums as the court prospectively should order, but not to pay any pre-ex-isting demand. Tubb & al. v. Harrison & al. 4 Term Rep. 118. Cooper v. Martin, 4 East 76. Edwards & ux. v. Davis, 16 Johns. Rep. 281. Wethersfield v. Montague & al. ante 507. At common law, the duty of a person to support even his natural relation, is of imperfect obligation only, and cannot be enforced ; except that of a parent to maintain his offspring, until they arrive at maturity. Beyond this, the liability is created by statute, and to be effectuated only by application to the county court, pursuant to the statutory provisions.

This brings me to the last objection, which is, that for aught that appears, Adam S. Clark was of sufficient ability to supply his wife. On this part of the case, the jury were informed, the real question was, whether Sally Clark needed relief ; in determining which question, “ it was competent foi them to consider the situation of her husband, as to his property and responsibility ; and the probability or possibility of her necessities being supplied upon his credit; and that if the jury found said expenditures had been demanded and refused, and that Sally Clark needed relief, they ought to find for the plaintiffs.” Under this charge, the jury must have found, that Adam S. Clark had neither property nor credit ¡ and that Sally, his wife, for this and other reasons, needed relief. Hence, the objection is in opposition to the fact, resulting, by clear implication, from the statement apparent on the motion.

I would not advise the granting of a new trial.

Peters, Brainard, and Bristol, Js. were of the same opinion. Chapman, J. being interested as an inhabitant of the town of Newtown, gave no opinion.

New trial not to be granted;