Town of Derby v. Town of Salem

The opinion of the court was delivered by Barrett, J.

I. For the purpose of charging the town of Salem with the settlement of the pauper (Traversee), the plaintiff town gave evidence tending to prove that said pauper, with his family, was residing in the town of Salem on the 30th day of April 1822 — the day on which said town became organized. The town of Salem, on the other hand, claimed that said pauper was, on that day, residing in the town of Derby; and for the purpose of proving the fact to be so, offered a witness to testify that in Decern *725 ber 1822, or in January 1823, said Traversee was at Coventry, and then stated to the witness that he had come from the town of Derby» —that he lived there, and had for a year previous to that time. This offer was objected to, and was excluded by the court. It is to be» remarked that said pauper is not a party in interest in this suit, and so the admissibility of the evidence offered does not fall under the rule governing admissions made by a party against his interest.

The defendant claims that it is governed by the rule under which sayings are admissible, as part of the res gesta. What is the res gesta, of which it is claimed that the sayings of the pauper are a part ? Obviously the fact of his actual residence in the town of Derby on the 30th day of April, 1822. And yet this fact is the very point in controversy. Upon the reason of the thing, it hardly seems congruous to make the admissibility of the evidence depend upon the assumption of the existence and truth of the controverted fact, which the evidence is offered to prove. In the argument it was likened, by counsel for the defendant, to the sayings of a tenant in possession, touching the character in which he was holding. But obviously the analogy would not be complete nor applicable, unless it were held that his sayings were proper evidence of the very fact of possession, — the fact which must be taken for granted, before any foundation for the sayings of the tenant as evidence can exist. It will hardly be claimed that such a position would be tenable, either on principle or authority. All the cases cited show that the sayings were admitted to prove the character of a possession which was conceded, or was proved by other evidence, to exist; and not to prove the fact of possession. 2 Pick. 536 , West Cambridge v. Lexington. See cases cited from Cow. & Hill’s notes, vol. 2, p. 601.

The point in controversy in this case was the place of the residence of the pauper, on the 30th day of April, 1822. The offer was to give evidence of what he said about it, in December or January next after that day. Perhaps it might seem entitled to a more favorable consideration, if the offer had been to show what the pauper said on that day, as to where his residence then was. Yet even then it would be difficult, either upon principle or rule, or the analogy of adjudged cases, to hold that the evidence would have been admissible. Clearly the case of Londonderry v. Ando *726 ver, 28 Vt. 416 , cited by the defendant’s counsel, does not sustain his view, but bears in the other direction. It clearly limits such evidence, if admissible as part of the res gesta, to explaining the character of the residence, and puts it doubtfully whether it would be admissible for that purpose. The case is an authority against the admissibility of such evidence, as tending to prove the fact of residence in the town in question. To the same effect are Cherry v. Slade, 2 Hawk. 400; Arkwright v. Stansbury, 5 Car. & Payne 575, and all the cases cited by counsel from 2 Cow. & Hill’s notes.

The fact of residence is assumed. The sayings were admitted to show the character of the residence, as affected by the intention of the party, as manifested by his sayings. This is emphatically true of Gorham v. Canton, 5 Greenl. 266 The case of Ward v. Oxford, 8 Pick, seems to carry the point beyond the limit prescribed by all the other cases that have come to our notice. Yet in that case the distinction is taken between the evidence there admitted “and the mere verbal declaration of the pauper,” “which,” says the learned Judge, “has been ruled not to be evidence.”

But in this case the offer as made was clearly to be excluded by force of the well settled rule of law negatively stated by Prof. Greenleaf, “that when the declarations offered in evidence are merely narrative of a past occurrence, they cannot be received as proof of the existence of such occurrence.” 1 Greenl. Ev. § 110, p. 135. See also Haynes v. Rutter 24 Pick. 242 .

These views render it unnecessary to consider or indicate, what effect the old age and infirmity of the pauper and his wife should have upon the question, whether it would be competent to give in evidence their sayings, as proof of a fact, as to which they might be called to testify directly.

II. The next exception was taken to the decision of the court, permitting the book of accounts of Major Stewart to be given in evidence.

The defendant had introduced evidence tending to prove that said Traversee, after January, and before April of the year 1822, removed with his family from the town of Salem to Major Stew, art’s in the town of Derby, and was residing in Derby at the time the town of Salem was organized. To meet this evidence, the plaintiff offered in evidence the account book of said Stewart, in *727 connection with evidence tending to prove that said Stewart was dead; that it was the book on which he kept his accounts, and that the charges on said book against said Traversee were in his hand ■writing, etc., etc., as is detailed in the bill of exceptions. The first charge against Traversee on said book, was for moving him from Salem to Major Stewart’s, in the spring of 1826. This case, on this point, can not well be distinguished from that of Augusta v. Windsor, 19 Maine 317 , and many other American and English cases which stand upon sound reason, and which have established and illustrated a rule that is well understood and often applied. In the case before us, the entry in the book is corroborated by other circumstances, in a manner that brings it fully within the rule announced by Justice Taunton, in Patteshall v. Turford, 3 B. & Ad. 890, which is adopted in the 19th Maine, cited supra, and is propounded as the law of the subject by the most authorative text books. See 1 Starkie’s Ev. 299 et seq; 1 Greenl. Ev. § 116 § 120.

III. The next exception is taken to the admission of a copy of the record made by the town clerk of Salem, of the birth of the pauper’s children. It is stated in the bill of exceptions, that in connection with said record the defendant town called as a witness the said town clerk, who testified that the statement of the births of the children was given to him to record, about the year 1835, or soon after, by Mrs. Traversee. It seems that this testimony was given after the decision to admit the record had been made, and it had been put as evidence into the case; and so this testimony constituted no part of the ground of objection to the admission of the record which was overruled by the county court.

It being the official duty of the town clerk to make such a record, a duly authenticated copy of it, was, prima facie, admissible as evidence of the facts which it embodied; Slade’s Stat. 415 — 16; 1 Greenl. Ev. § 483 — 4.

But even if the objection had been predicated upon the testimony given by the town clerk, we think it should not have been sustained. The record was admissible. The weight to be given to it, as evidence of the time of the birth of some of the children, -was properly within the province of the jury to determine, in view of the testimony given by the town clerk. In the absence of anything showing the contrary, we must assume that the jury received proper *728 instructions on this subject. We think the exception was not well taken.

IV. The request for a charge, “that if said Traversee was residing with his family in Salem at the time said town was organized, he gained no settlement in that town thereby, because he was an unnaturalized foreigner,” was properly refused. The statute, then in force, is conclusive on the subject; Slade’s Stat. 882. The language is, “ any person of full age, etc.” It makes no distinction on account of place of birth, citizenship, or any other incident. The statute instituted the settlement upon the exclusive facts of the person being of full age, having resided in the state one full year, and having his or her home in any town in this state, at the time when the same shall be organized.

The charge, in this respect, was warranted by the evidence, and required by the law.

All the questions raised in the case are thus disposed of, and the judgment of the county court is accordingly affirmed.