Inhabitants of Stratford v. Sanford

9 Conn. 283

Opinion

Hosmer, Ch. J.

The action of trespass on the case, which

the plaintiffs have brought, is a universal remedy given for all personal wrongs and injuries without force ; and in general, it is sustainable, whenever the plaintiff has suffered damages, by the wrongful and illicit conduct of the defendant.

That damage has arisen, in this case, from the defendants’ act, is a fact clearly stated ; and the only enquiry is, was the act injurious or wrongful ? It is not necessary, that it should be perpetrated through fraud, as in the argument was contended ; for this is one species of wrong only. Every injury to another is entitled to a remedy ; and it is no matter of what description the fact is, if it be a wrong accompanied with damage. This constitutes it a legal injury ; and every injury of this description, is equally to be vindicated, by its appropriate remedy.

, The first count in the plaintiffs’ declaration, avers, that damage has accrued to the plaintiffs, by the act of the defendants, who intentionally transferred to them a burden, that rested on Danbury, and on the defendants as inhabitants of that town, The act is equally immoral and illegal. It is neither compati-with private justice nor public convenience, that individuals should thus relieve themselves, and the town in which they reside, by easting their misfortunes on others. It is their duty to bear them, until they legally can redress themselves.

Jn respect to the second count, the defendants are, in no degree, relieved from the principles advanced. The warrant for removal, obtained, is no justification. It is a ministerial act only, obtained by the false representation of the defendants. There is nothing in it of a judicial nature ; nor in this state, has it ever been so considered. In a court or forum for the administration of justice, there are three constituents; the actor, reus, and judex. Here, there was no actor, or plaintiff; no reus, or defendant; and no judex, or judge. The civil authority have confided to them, without calling in the party in interest, and without any legal mode of revising their doings, a ministerial act, on the application of personshaving an interest. In England, and in the state of New-York, where the proceeding is held to be judicial,'there is a legal mode by appeal, and in a strictly judicial manner, for the administration of justice between the parties interested; but it is not so here. The appointment of appraisers by a justice, or of an overseer by selecf-men, is as much of a judicial act, as is the issuing of a warrant for the removal of paupers. Hill v. Fox, 1 Conn. Rep. 295, Betts v. Dimon, 3 Conn. Rep. 107.

Were it necessary, it would: not be difficult to show, that the abuse of judicial process, fraudulently obtained by a false representation, would not justify the defendants.

• It has been said, that the rights of corporations depend on their charters ; and that no authority is given for the maintenance of actions at common law.

The principle alluded to is misconceived. Undoubtedly, the legal capacity of a corporation, is alone created by the sovereign power- It cannot act as a corporation, nor hold land or property, nor do any thing else, until it is legally authorized. But where it is duly constituted, and has imparted to it certain rights and privileges, it is a moral person, and may vindicate and preserve all its rights, by the common and statute laws, as all other persons may, except so far as it is restrained, by its charter, or by express law. The error of the defendants’ argument, consists in confounding the rights of a corporation, with the mode of vindicating them. 15 Johns. Rep. 383. In the latter, the laws are open to them for redress, usually, as for other moral persons.

It has been argued, that as the paupers might voluntarily

have gone to Stratford, so may the defendants remove them thither. Between these cases there is no analogy. -The pauper goes to a town, without hny obliquity of intention ; for to him it is immaterial, by what corporation he is supported. But the defendants acted on the unjustifiable principle, of obtaining the removal of a burden from themselves, and casting.it, without any reason, upon another. And if such conduct is authorized, it is easy to perceive, what instances of inhumanity and inconvenience, it may occasion.

Such of the cases cited by the defendants, as are entitled to consideration, I will now attend to. The case of Crouse v. Mabbelt & al. 11 Johns. Rep. 167. has no bearing on the question under discussion. It was a suit for the bringing of a pauper into a town, who afterwards fell sick, and became a public burden. There is no fact stated, from which it appears that the pauper had required, or would require relief; or that his sickness was at all anticipated. No wrongful act was done, unless it be wrong to accompany a poor man into a town.

The case of Jenkins & el. v. Waldron, 11 Johns. Rep. 114. was an action against the inspectors of an election, for refusing a vote, as the exercise of deliberate judgment, and without malice. That such a suit was not sustainable, is not to be questioned. The inspectors acted involuntarily, in the necessary exercise of their duty, and were obliged to accept or reject the vote. But not so the defendants. They were voluntary agents, in no matter of prescribed duty, and acting from obliquity of motive.

The Overseers of the poor of Pittstown v. The Overseers of the poor of Plattsburgh, 18 Johns. Rep. 407. has no bearing on this case. The latter obtained an order of removal of a pauper, adjudicating his legal settlement to be in Pittstown; the order was quashed; and having been removed pursuant to it, the action was brought for not supporting him or taking him back. The court adjudged, that the order of removal, it was presumable, was bona fide; and that it was the duty of Pittstown to remove the pauper back to Plattsburgh, and therefore, that the action was not sustainable. Had the order of removal been obtained mala fide, as was the one in the case before us, the determination probably would have been different. Even as it was, it was said by Spencer, Ch. J. (p. 419.) that he thought it ought to have been made the duty of the overseers of Plattsburgh to take back the pauper at their own expense. The same case had been before the same court, at a former term, (15 Johns. Rep. 436.) when it was a fact admitted, that the pauper had no legal settlement in the state of New-Tor It. It was by the court then adjudged, that the action was maintainable, on the principle, that a, burden had unjustly been thrown upon Pittslown, by the procurement of the overseers of the poor of Plattsburgh ; and that the pauper having no legal settlement in the state, it was their duty to have exonerated Pittstown from the burden they had cast on them. And the difference in the above determination rested on this ; that at one hearing, the pauper was supposed to be settled within the state, and instead of an action, it was said, he ought to have been removed to his legal settlement; but at the other hearing, when the pauper was admitted to be settled without the stale, the action was held to be sustainable. On the whole, the determination clearly goes to establish the sufficiency of the plaintiffs’ declaration.

There exists no doubt, that the judgment ought not to be arrested.

I now come to the motion for new trial; and the first oh jection has been given up, and requires no discussion. I merely will remark, that although, as a general rule, leading questions are not allowed on the examination in chief; yet if 1 he witness appears to be in the interest of the other party, or unwilling to give evidence, the court will, in its discretion, permit the examination in chief to assume the form of a cross-examination. 1 Phill. Ev. 205. 1 Stark. Ev. 122 to 12. It is. then, not a peremptory and exclusive rule, but is always subject to the court’s discretion; and in all events, is not aground for new trial.

The next objection is made to the admission of the vote of Danbury, to affect the rights of the defendants. The objection, undoubtedly, is well founded, and ought to prevail. Danbury was no party to the action; and was not made such, by assuming the defence of it. There is no case determining a person to have become a party, on such ground. The cases of Bauerman & al. v. Radenius, 7 Term Rep. 663. and Bulkley & al. v. Randan & al. 3 Conn. Rep. 76. merely establish this principle, that the defendant may give in evidence the declaration or admission of the plaintiff on the record, to defeat the action, although the plaintiff appears to be only a trustee for a third person. But that a person may assume the defence of an action, and by virtue of such assumption, thrust himself in as a party, is a novelty, and without any ground of support.. The irrelevancy of a vote or agreement of indemnity, made six years after the commission of a tort, and to save harmless the tort-feasor; made, likewise, without his knowledge or consent, and without any apparent consideration, furnish other grounds of objection against the admission of the vote. It is, however, unnecessary to discuss them- As Danbury is no party to the plaintiffs’ action, the admissions or declarations by her, are hearsay only, and cannot be admitted to affect the defendants.

It has been insisted, that the defendants procured the removal of the pauper as select-men, and acted throughout in good faith ; and for these reasons, that the plaintiffs’ suit ought not to be maintained.

The answer to this has already been given. The defendants procured the removal of paupers, burdensome to Danbury and themselves, as inhabitants of that town, under a false suggestion, that they were settled inhabitants of Stratford, Either the defendants knew this, or had good reason to believe it, and very little or none to suppose the contrary. The paupers had never been in Stratford f were born in the state of New-York; and Henry Be vans, in whose right they make their claim, had resided in Middletown, in that state, from 1795 to 1803, where he gained a legal settlement. The slender pretext of the defendants, is, that before the year 1795, he was settled in Stratford. It is hardly consistent with good faith, that after the lapse of about thirty years, it should be assumed, without enquiry, that this absent man had not obtained another settlement.

But this defence, slight as it is, wholly fails. There were seven select-men in Danbury, and two of the select-men only concurred in obtaining the warrant of removal. The selectmen never applied for it, nor concurred in the transactions, on which the plaintiffs’ suit is founded. They were entirely the unauthorized and wrongful acts of individuals.

One further ground alleged for a new trial remains; and that is, the rule of damages. The court charged the jury, that the plaintiffs had right to recover damages, to the time of trial. On the contrary, it is argued, that it was the duty of Stratford to remove the paupers to their legal settlement; and hence, that they can recover damages only, for a reasonable time after their burden commenced ; that in all events, there can be no recovery after the date of the writ.

The legal settlement of the paupers was unknown to Stratford; nor was it their duty to go out of the state, in search after this fact. The law has devolved on them no such obligation. If they had gone in search of the paupers’ settlement, and either had or had not found it, their expense would form no item of claim against the defendants, as a compensation for their service.

To this effect is the cited determination from the state of New-York, (Overseers of the poor of Pittstown v. Overseers of the poor of Plattsburgh, 15 Johns. Rep. 436.) advancing the principle, that where a removed pauper has no settlement' within the,4 state, it is the duty of the party removing to exonerate those who have an unjust burden cast upon them. This is in analogy with the most common and familiar principles. If a stick of timber is tortiously put on the land of another, he may remove it, if he pleases; but if he does not, the trespasser must pay damages, so Ipng as he suffers the timber to remain. If the plaintiffs might bring their action toties quoties, the rule that damages shall be limited to the commencement of suit, would apply. But in this case, the recovery, as in trespass for assault and battery, exhausts the entire cause of action. All the damages, then, sustained by the plaintiffs, to the last moment of estimating them, are justly recoverable.

In result, a.new trial is advised, only for the admission of the vote of Danbury in evidence.

The other Judges were of the same opinion.

New trial to be granted.