City of New Bedford v. Inhabitants of Hingham

Morton, J.

It appeared at the trial that the plaintiff furnished supplies to Christina Russell as alleged in its declaration ; that its overseers had given the notice required by the Gen. Sts. c. 70, § 17, and that no answer was made thereto by the overseers of the poor of the defendant town within two months after its receipt. The plaintiff contended that the defendant was estopped *447 to deny that the said Russell was a pauper; but the court declined so to rule, and admitted evidence showing that at the time the supplies were furnished, she did not stand in need of relief. A majority of the court is of opinion that this ruling was correct.

The liability of towns to support or assist the poor is created entirely by statute. In every action to enforce a statute liability, the burden is on the plaintiff to prove all the facts which, by the statutory provisions, are necessary to create the liability. Consequently, if one town sues another for supplies furnished to an alleged pauper, considering the case independently of any estoppels, the plaintiff town is obliged to prove that its overseers had furnished the supplies charged to a person found therein; that such person stood in need of immediate relief, and that his lawful settlement was in the defendant town. All these facts must exist before the statute imposes any liability upon the defendant to pay for such supplies ; and it is elementary law that the plaintiff must prove all facts necessary to make his case.

Such being the general rule, our statutes have provided that when supplies are furnished to a person in need of relief, the overseers so furnishing them may send a written notification, stating the facts, to the overseers of the place where his settlement is supposed to be, and if such last mentioned overseers do not, within two months, send a written answer to such notification, the overseers having charge of the person may remove him to the place of his supposed settlement, “ and such place shall be liable for the expenses of his support and removal, to be recovered in an action by the place incurring the same, and shall be barred from contesting the question of settlement with the plaintiff in such action.” Gen. Sts. o. 70, §§ 17,18. These provisions have existed as a part of our statute law, without any material change, since 1794. St. 1793, c. 59, § 12. Rev. Sts. o. 46, §§ 19, 20.

In every action brought by a town to recover for supplies furnished to a person in need of relief, if its overseers have duly given notice and no reply has been received within the two months, the effect of the last clause above cited is to estop the defendant town from denying the settlement of the person relieved. But the estoppel does not, in terms or by necessary implication, extend to any other issue involved in the action. On *448 the contrary, the expression of one issue which the defendant is barred from contesting, raises the implication that it is not intended to estop him upon any other issue, upon the maxim, Fxpressio unius exclusio alterius.

The statute estoppel conclusively supplies the place of proof by the plaintiff of the settlement; but it does not otherwise affect the burden of proof, or the mode in which the issues involved are to be proved. As to the other issues, the plaintiff stands in the same position as if the settlement were proved in any other mode than by an estoppel.

In the case at bar, therefore, the presiding judge, who tried the case without a jury, correctly held that evidence was admissible upon the question whether the person furnished with supplies then stood in need of relief, and that it was his duty to pass upon this issue as a question of fact.

The plaintiff, in support of its view, relies upon Freeport v. Edgecumbe, 1 Mass. 459, 463 . The ruling relied on was a ruling of a single justice at nisi prius, and we do not find any case in which it has been affirmed by the full court. The case, therefore, has not the weight of an authority for the plaintiff.

Exceptions overruled.