St. Johnsbury

v.

Waterford.

CALEDONIA, or not of the animus revertendi, as explained in that case. March, In regard to clothes destroyed by the pauper and replaced, 1843. the jury were told if that happened without any fault of the plaintiffs, they might be recovered for, so far as they were necessary, and that the expense of keeping the pauper by Kirby, and paid by the plaintiffs, if it did not exceed what they must have expended in keeping her at home, might be recovered; and so, also, of the expense of maintaining her at the asylum, and transporting her there and back again. To which decisions, and charge of the court, the defendant, after verdict and judgment for the plaintiff, excepted.

C. Davis, for defendant.

It was indispensable that the plaintiff should show that the town of Waterford was the place of legal settlement of C. C. Rowell, at the time of furnishing the support, or at the time of bringing the action we think the latter. The county court instructed the jury that a residence of seven years, continuously, of S. Rowell, Jr., in Concord, previously to the bringing of the action, which the case shows to have been proved, would not avail the defendants unless it were also shown that the septenary was completed before the expenditures were made. If this is to be understood as meaning before the expenditures commenced, it was clearly erroneous. The specification of plaintiffs' claims, made a part of the case, shows that the support commenced June 12th, 1840, and continued without interruption, reckoning the short residence in Kirby under the order of removal, and the long residence at the insane hospital, at Brattleboro, as a continued support, as the plaintiffs do, until the bringing of the action in October of the same year. If the court meant the termination of the period of support, the jury should have been informed, that if they believed the evidence which tended to prove a continued residence of S. Rowell, Jr. in Concord seven years previously to the bringing of the action, the town of Waterford was not the place of legal settlement of the transient person, and their verdict should, of course, be for the defendant. As no evidence seems to have been introduced tending to prove the contrary, it appears impossible to account for the verdict on any other grounds than the

want of explicit instructions on this point. Manifest injus- CALEDONIA, tice seems to have been done by it.

March, 1843.

D.

Waterford.

On the question of the inability of Rowell to support his St. Johnsbury wife, we think the instructions requested by defendant's counsel should have been given. They were, that an assignment in trust, for the support of his children, (leaving his sick wife unprovided for) of all his property real and personal, with the exception of one or two trifling articles, especially when that property amounted to so considerable a sum as in this instance, could not be regarded as divesting him of ability to support his wife, provided the possession of the property could be considered as conferring such ability. It is true the court do not, in express terms, negative this proposition. They say if he, Rowell, had wholly divested himself of all his property, by assigning the same, absolutely, and unconditionally to his brother, for the payment of his debts and the maintenance of his children, and that, thereafter, he had no interest in the control of the same, such property could not be taken into the account,' &c.

But the fact of the sweeping character of the assignmentits being made to a near relative-the purpose to which it was to be applied the fact of the sudden return of Samuel, after his wife had become quartered upon the town of St. Johnsbury, and a controversy between that town and Waterford in relation to her support had sprung up, and his settling down with his children upon the real estate he had conveyed away, and his resumption and carrying away with him, some time after, of a portion of the personal property he had sold-afforded such cogent reasons for believing that the assignment was merely colorable and collusive, or was in trust for certain purposes, that the defendants were entitled to specific instructions as to the effect, if the jury should adopt the conclusion to which these facts strongly tended.

There is manifest error in refusing to instruct the jury, in relation to the question whether Rowell's leaving the state for 9 or 10 months, under the peculiar circumstances indicated by the evidence in this case, would or would not, interrupt his residence in Concord, where all his family, except his wife, remained, in contemplation of the act which confers a legal settlement as a consequence of seven years continued residence.

CALEDONIA, March, 1813.

St. Johnsbury

v.

Waterford.

The request made by defendant's counsel was fully justified by the evidence, if believed.

But the court contented themselves by alluding to the 'animus revertendi,' as explained in the case of Kirby v. Waterford. Of that explanation we can take no notice here. The records and files in that case are not made a part of this case, and cannot therefore be referred to, to show what instructions were given in this. This point was material, as there was evidence that Rowell commenced his residence in Concord sometime previous to his marriage in January, 1834, and continued it, if this absence did not interrupt it, till after this suit was instituted; and, from its nature, it was one which peculiarly required elucidation by the court.

The court erred also in excluding, on cross examination of one of the plaintiffs' witnesses, testimony as to the admissions of S. Rowell, Jr., made after the conveyance to his brother, as to the character and objects of that conveyance. His declarations subsequent to the conveyance, seem to have been excluded, upon a supposed but mistaken analogy between this case and those where the conveyances are impeached for fraud, in which latter cases, expost facto declarations of the grantors are, with great propriety, not admitted to defeat the rights of the grantees.

As to the sum paid to the town of Kirby for the support of Mrs. Rowell, while remaining there under an order of removal, afterwards vacated-the expenses of transporting her to and from Bratleboro and supporting her while there at the asylum-the destruction of clothing and other property by her while in the poor-house at St. Johnsbury, we say that each and all of these classes of expenditures seem to be wholly irreconcileable with the terms and scope of the 12th section of the statute.

The opinion of the court was delivered by

REDFIELD, J.-The great number of questions arising upon this bill of exceptions seems to require that they be very briefly disposed of in the opinion.

1. It is objected to the proceedings in the court below, that it does not appear that Caroline C. Rowell's legal settle

March, 1843.

v.

Waterford.

ment was in the town of Waterford, at the time the expen- CALEDONIA, ses were incurred. But it does appear by the bill of exceptions, that it was conceded, at the trial, that such was the fact, St. Johnsbury unless defeated by seven years' residence, in Concord. The jury were told that, unless this residence was completed, before the expense incurred, or the bringing of the action, it would not affect the right of recovery. They have, then, negatived that fact.

2. There is no objection to the charge in defining the term," residence," except the reference to the other bill of exceptions, by the judge. We do not understand, by this, that the jury were referred to the exceptions in the other case, but only that the judge, in drawing up the case, to save the labor of writing out the charge twice, put both cases on this point, where they were precisely parallel, upon the same bill of exceptions. Nothing is more common than to try two, or more cases, in this court, upon one bill of exceptions. We see no more objection to referring to another bill of exceptions, as part of the case, than to a copy of record, or an original contract. It is but making a copy of the charge, in the other case, a part of this.

3. We think the charge, in regard to Rowell's ability to support his wife, correct. He had effectually disposed of all his property; and the mode was unimportant, as it was binding upon him, and upon all others, unless done to defeat their rights, which it does not appear was attempted to be shown in the present case.

4. The declarations of Rowell, the husband of the pauper, were mere hearsay.

5. As to the sums paid to Kirby, and at the insane asylum, they cannot be objected to, as they did not increase the expense of her maintenance. And if the expense had been positively increased, by sending an insane pauper to the asylum, I have no doubt, it would, under the present enlightened views, upon the most judicious and humane mode of treating such cases, be considered necessary expense of comfortable support. I trust, indeed, the state is not prepared to establish a system of treatment of insane paupers, which would be esteemed disgraceful in the case of relatives of sufficient ability.

6. The expense of clothing, destroyed by the pauper, was

March, 1843. Sanborn

CALEDONIA, not only necessary, but indispensable to decency. This expense must be borne somewhere. Of course it must come where the principal burden of expense of maintenance falls. Judgment affirmed.

Morrill.

ABRAHAM SANBORN V. CALVIN MORRILL.

A sale of a personal chattel, by one tenant in common, is not such a destruction of the chattel, as to enable the other tenant in common to maintain an action of trover against the purchaser. cotonaut ?

THIS was an action of trover, in which the plaintiff claimed to recover the undivided half of four hundred pine mill logs. Plea, general issue, and trial by jury.

On the trial the plaintiff offered to prove that he was tenant in common of the logs sued for, with one Isaac M. Sanborn; that said Isaac M., by an instrument in writing, pledged his interest in the logs to the defendant, to secure a debt he owed him; that the defendant, without the knowledge or consent of the plaintiff, took the logs from where they were lying on the bank of a river, and floated them some miles to a saw-mill, and had them sawed into boards, and sold the boards, and took the pay for them, and refused to account, in any way, with plaintiff for the avails of the sale, and denied the plaintiff's right in the logs. This testimony was objected to by the defendant, as not being sufficient to entitle the plaintiff to recover in this action, and the court so decided, and rejected the evidence; to which the plaintiff, after verdict and judgment for the defendant, excepted.

N. Baylies, for plaintiff.

I. By the writing signed by Isaac M. Sanborn, it appears that he turned out his undivided half of the mill logs as collateral security. As no time is mentioned when the pawn was to be redeemed, the said Isaac M. had his whole life to do it in, unless compelled to do it sooner, either by an order of a court of chancery, at the instance of the pawnee, to sell the pawn to raise money to pay the debt, or by the power of the pawnee to sell the property, after demanding payment