Town of Kirby v. Town of Waterford, 14 Vt. 414

The opinion of the court was delivered by Williams, Ch. J. In this case there are exceptions to the proceedings of the county court, and also á petition for a new trial, on the ground of newly discovered evidence. It appears that, on application of the overseers of the poor of the town of Kirby, an order was made removing one Mary O. Goodhue to the town of Waterford, and the inquiry was as to the settlement of her father, Ephraim T. Goodhue, who, it appeared, had resided theretofore in Waterford.

On the trial, it was attempted on the part of the town of Kirby to prove that, between November, 1801, and November, 1817, Ephraim T. Goodhue had resided in the town of Waterford more than one year, and was not warned out, and thereby gained a settlement under the act in relation to settlements, passed in 1801.

It appears that, although it was proved that he owned land in Waterford, and resided there a portion of every year for a long period previous to the year 1814 or 1815, yet the jury, under the charge of the court, did not find, from the testimony introduced, a continuous residence for any one period of a whole year.

The petitioners now set forth, that they have discovered evidence, which proves that he had acquired a settlement in Waterford under the act passed in 1797, which provided that every person who should purchase a freehold estate of the value of one hundred dollars, &c., and shall have occupied and improved it for one whole year, and also every healthy able bodied person, coming and residing in this state, and being of peaceable behavior, shall be settled in the town, where he shall have first resided for the space of one whole year.

The affidavits show that this testimony is new-discovered, and also, unless contradicted, show a settlement under that act; and, unless the application is liable to some of the objections urged against it, entitles the party to the new trial prayed for. In the first place, there does not appear to be any want of diligence in not procuring this testimony previous to the former trial.

Goodhue had never resided in Kirby, and his deposition, which was used on the trial, as well as the other testimony, did not give any indications of his residence previous to 1801, and was not calculated to induce any inquiry as to any residence anterior to that period. The overseers of the poor could not, therefore, be negligent in not attempting to prove a fact of which they had no knowledge, and which they had no reason to believe or infer either from the examination of the pauper herself, her father, or any of the other witnesses. In the second place, the testimony is not cumulative.

Cumulative testimony is to the same fact litigated at a former trial, and upon which testimony was then given. The discovery of such testimony should never be the ground of granting a new trial, unless in some extraordinary cases, which are of a character so peculiar as to form an exception to the general 'rule. The facts litigated and in evidence at the former trial were in relation to a residence after 1801, and a settlement acquired under the act passed that year. The newly discovered evidence relates to a residence before that period, and a settlement acquired under the previous statute.

In the third place, the testimony, particularly the affidavits of two witnesses, is of so decisive a character as to show a settlement under the act of 1797, which must change the verdict unless the facts are controverted, and, of course, the application is not liable to the objection that the issue will yet be left doubtful. It is, however, objected that, inasmuch as there is no equity between towns in relation to the settlement of paupers, no new trial should be granted in such cases.

And it may be true that the courts would not interfere on light grounds to disturb a verdict, and that, in the exercise of their discretion, they might not interfere as they would in cases where the life, liberty or property of an individual was concerned. But inasmuch as there is no such equity between towns, they must be entitled to the benefit of the law, and the right between them is that the town where the law fixes the settlement should bear the burden of supporting the pauper.

And if this cannot be settled by one trial, it. must be settled by another, where the principles applicable thereto warrant the granting a new trial. If this pauper is settled in Waterford, the law requires that it should be so adjudged, by the judicial tribunals, and no principle requires us to say that a verdict, obtained in any way, shall establish such settlement, when it is clear and apparent such verdict ought not to be retained by the party obtaining it, whether through accident, mistake, or fraud.

It is not necessary for us to pass on the exceptions, further than to say that when the law is correctly stated to the jury, as it was in this case, any remarks of the court, by way of illustration, do not furnish a ground to set aside the verdict unless they are obviously calculated to mislead.

The residence of a pauper, who is a single man, is at the place where he makes his home, and this is usually the place where he keeps a chest, if he has one, or his tools, and if he has land on which he works, intending to clear up and make a farm, works on it in the summer, and, in the winter, works out at other places, intending to return to his land, and has a boarding place and a place where he keeps his clothes, tools, &c., such' must be considered as his home, whether an officer, having a writ to serve, would find such residence or not. A new' trial is granted, with costs to abide the event.