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contradicted, to establish her case. And there is nothing
strange or incredible in her testimony. In cases tried to the
jury we have established the rule that if there is substantial
evidence produced by the plaintiff in support of his cause,
which should be weighed and considered by the jury, a non-
suit ought not to be granted. And we think the same rule
should apply in cases tried by the court."

It is certain, from the testimony in the case before us,
that the plaintiff introduced substantial evidence in support
of its claim, which should have been considered and weighed,
fairly tending to establish the following facts, namely : — That
Francis Naylan was an alien ; that he had lived continuously
with his sister in Burlington since March, 1873 ; that upon
her death, he was, within the meaning of the statute, a per
son needing relief who had no settlement in any town in
this state, and that he applied to G. H. Holcomb, a select-
man of Burlington, for relief, which was thereupon furnished
him by Burlington at Mrs. McNamara's, who lived in Can-
ton ; that he was supported there, upon the agreement of
Burlington to pay for such support, (and which it in fact
paid for during the first year,) being the only support he re-
ceived, up to the date when Canton furnished him the sup-


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280 JANUARY, 1890.

Town of Canton r. Town of Burlington.

plies to recover for which this suit was brought ; that when
the supplies were furnished he was a proper subject for help
by Canton; that the supplies furnished were necessary and
of proper amount, and that due notice was given by the
selectmen of Canton to the selectmen of Burlington, as set
forth in the complaint.

We do not overlook the defendant's claim that the testi-
mony concerning the date of Naylan's sister's death and
the testimony of Mrs. McNamara as to the date when Nay-
Ian came to her house to be supported, taken in connection
with the date of Mr. Holcomb's election as selectman, dis-
proved, if it could be relied on, the plaintiffs claim that
the agreement by Burlington to support Naylan at Mrs.
McNamara's preceded his removal to her house, and showed
that his removal was voluntary, without the intervention of
Burlington, and, what was of the highest importance, was
prior to his application for relief. But on the other hand it
must be remembered that there was positive testimony that
this agreement of Burlington was made in response to Nay-
lan's application for relief, that it preceded his remova^, and
that his removal was in consequence of such agreement.

Applying the ordinary rules for testing the weight of tes-
timony, there was much stronger evidence, as the case stood,
that the agreement" to support preceded the removal and
that the date which was given of the removal was incorrect,
than there was that the date given was correct and that
therefore the removal preceded the agreement. This was a
vital question, and we think it must be conceded that the
plaintiff introduced substantial evidence in support of its
claim which any tribunal should weigh and consider, and
which, if the law applicable to the facts as claimed and sup-
ported by such substantial evidence, is favorable to the
plaintiff, should have protected it from the judgment ap-
pealed from.

Upon the facts above recited Naylan was a state pauper.
By the statute applicable to the case " all persons needing
relief who have no settlement in any town in this state,
shall be state paupers, and shall, when needing relief, be


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JANUARY, 1890. 281

Town of Cftnton v. Town of Burlington.

provided for bj*^ the comptroller for the period of six months
after they come into this state. Pub. Acts of 1878, p. 317,
sec. 3. In Marlborough v. Chatham^ 60 Conn., 654, it ap-
peared that Michael Kelley came to the United States from
Ireland in March, 1872, and, in April of that year, to Port-
land in this state, where he remained until June, 1873. In
July, 1873, he went to Marlborough, where he remained
until April, 1879, when he removed to Chatham, and re-
mained there until April, 1880, when he returned to Marl-
borough, and remained there until September, 1880, when
he became a pauper. The court says : — " The case of Kelley
comes within the statute definition of a state pauper, comes
within the reason and equity of it, and we think brings him
within the class to be supported by the state during the first
six months^ of his pauperism."

Under the "statute, therefore, as construed in that case,
namely, as meaning that the six months during which the
pauper shall be provided for by the comptroller of the state
were the first six months of his pauperism, Nay Ian was a
state T)auper when he applied to Burlington for relief. Ap-
plication was not made to the comptroller to provide the
needed relief; Burlington through its selectmen furnished
it, and, so far as appears, has never applied to the comp-
troller for reimbursement for the first six months of such

Under section 21st of the public acts above cited, (Acts
of 1878, ch. 94,) all state paupers, after the period of six
months, as provided in section 8d of the act, shall be sent
back to the town where they resided when they applied for
relief, and this last mentioned town shall thereafter be
chargeable for their support until they have gained a settle-
ment in some other town, provided such paupers shall have
had a residence therein for a period of six months or more
prior to the time when they applied for relief.

The provision that the paupers shall be sent back to the
town where they resided when they applied for relief refei^s,
of course, to those to whom relief is afforded outside of
that town, either by the comptroller or by some town other


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282 JANUARY, 1890.

Town of Canton v. Town of Burlington.

than that made chargeable for their support by the statute.
The provision that the town where a state pauper resided
when he applied for relief shall thereafter be chargeable for
his support until he shall have gained a settlement in some
other town, provided he shall have had a residence therein
for a period of six months or more prior to such application
for relief, is the controlling one in this case, and in connec-
tion with the testimony would seem to settle the fact, primd
faaie^ that Burlington is liable for the support furnished

To sum the matter up then, Naylan, at the end of some
eleven years' residence in Burlington, came to want there
and needed relief. He applied to the town for relief, which
it thereupon furnished for six months and more. He had
no settlement in any town in this stat« and was a state pau-
per. Therefojfe, until he gains a settlement in some other
town, Burlington is chargeable for his support.

We have not referred to the statute of 1885, which makes
the six months for which the pauper is to be provided for
by the comptroller, the first six months of his residence in
the state, and not of his pauperism. Naylan had a status
as a pauper before that statute was passed, and if he went
into the town of Canton upon such an arrangement as is
alleged by the plaintiff, we think a refusal by the defendant
to comply with that arrangement would not affect that

As to the demurrer ; if, notwithstanding the fact that it
was sustained, the complaint still contained sufficient alle-
gations to entitle the plaintiff to judgment upon proper
proof, as we think it did, it has no ground for complaint,
not being injured by the ruling in that behalf. The demur-
rer, however, ought not to have been sustained.

The first ground of demurrer is, that " the selectmen can-
not in law bind the town in the manner alleged."

This refers to the agreement between the Burlington se-
lectmen on one side and Naylan and his friends on the other,
set out in the complaint, that if he would remove to the
house of his fiiend in Canton the town of Burlington would


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JANUARY, 1890. 283

Town of Canton v. Town of Burlington.

there support hira. The ground of demurrer is not perti-
nent. Whether a legal agreement or not, it tended to show
that Naylan applied for help before he removed to Canton.
The agreement would be admissible in evidence to assist in
fixing that very material fact, even if it was not a legal
agreement, and therefore the simple ground that it was not
a legal agreement was insuflficient to sustain the demurrer.

The second cause of demurrer is, "because no contract is
set up with said Canton upon which the action may be
maintained." It is a sufficient answer to this that the rights
of the respective towns do not depend upon a contract be-
tween them, nor is such the theory of the complaint.

Nor, in answer to the third ground of demurrer, was it
necessary to state facts sufficient to fix the settlement of
Naylan in Burlington. Its liability did not depend upon
the question of settlement.

The defendant's bill of exceptions states that the plaintiff
offered to prove by certain witnesses that an arrangement
was made by the selectmen of Burlington to have Naylan
removed from Burlington to the house of Mrs. McNamara
in Canton, there to be supported by her at the expense of
Burlington, and that certain sums of money were paid to
her for his support; to all of which the defendant seasonably
objected on the grounds stated therein. We think the evi-
dence was admissible in connection with the other evidence
with which it was offered and of which it was a part. It
conduced to prove, even as stated in the bill of exceptions
and apart from the other testimony, that Naylan appealed
for relief to Burlington before he removed to Canton. The
testimony objected to, as stated by the defendant, is that an
arrangement was made by the selectmen of Burlington to
have Naylan removed from Burlington to Mrs. McNamara's
in Canton, and there be supported, which is in itself directly
contradictory to Canton's claim that he was first removed
to Canton and there applied for relief, and that the select-
men of Burlington agreed to support him there. The order
of events is very important, and the testimony was at any
rate admissible for the purpose of showing it.


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284 JANUARY, 1890.

Town of Canton v. Town of Burlington.

As to the objection to Mrs. McNumara's testimony, that
it was hearsay, the defendant does not point out the partic-
ular portion that was objected to on that ground. The bill
of exceptions refers us to the statement of the evidence filed
by the court, for a particular statement of the evidence and of
the rulings thereon. A critical examination of the evidence
so filed discloses no such objection. The only objection
taken to her testimony in the record is, that tlie defendant
renewed its objection made to the evidence of O'Sheriden,
and the court ruled as there stated. The objection thus re-
ferred to was to any evidence tending to show any arrange-
ment by the selectmen of Burlington for the support of
Naylan at Mrs. McNamara's. In the absence of something
more explicit this court cannot decide that the exception
was well taken. Manifestly most of Mrs. McNamara's tes-
timony was not hearsay. If the defendant is to be under-
stood as objecting to it all as such, that of itself would be
sufficient ground for overruling the exception.

We no not see how the objection " to any evidence tend-
ing to show any arrangement by the selectmen of Burlington
for the support of Naylan at Mrs. McNamara's" can be sus-
tained, and that it was sustained is one of the plaintiffs
reasons for appeal. Evidence tending to show such arrange-
ment might easily tend to show that Naylan " was a person
needing relief," and that he "applied for relief to the town
of Burlington," both of which facts it was incumbent upon
the plaintiff to prove, as well as the fact that Burlington
supplied the relief applied for.

We have gone more fully, perhaps, than was necessary
into the points raised b}' the record, thinking that such a
course might perhaps save the parties from further litigation.

There is error in the judgment of the Court of Common

In this opinion the other judges concurred.


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JANUARY, 1890. 285

Benton v, Starr.

Charles L. Benton v8. John S. Starr. •'^ ^^

New Haven Co., June T., 1889. Andrews, C. J., Cabpenteb, Pardee,
Looms and Bbardslby, Js.

It is provided by Gkn. Statutes, § 1206, that any woman pregnant with or
who has been delivered of a bastard child, may complain on oath to a
jastice of the peace in the town where she dwells, against the person
she charges with being the father of the child, and that such justice
shall thereupon issue a warrant and cause such person to be brought
before him, and. If probable cause is found, shall bind him over to the
Court of Common Pleas. A complaint was made to a justice of the
peace by B, averring that he was the father and guardian of F, who
had been delivered of a bastard child of which 8 was the father, to
which both B and J7*made oath, but which contained no averment that
F was a minor. A wantint was issued upon it, and the defendant ap*
peared before the justice and pleaded a general denial, and was bound
over to the Court of Common Pleas, in which court the case was tried
upon a general denial, and no objection was made to the complaint in
respect to form or substance. Held, on an appeal by the defendant
from the adverse judgment of that court —

1. That the complaint was defective in form and that the defect might

have been reached by a proper preliminary plea.

2. But that after pleading a general denial and going to trial upon that

issue, it was too late for the defendant to take advantage of the defect.

3. That tlie omission to aver that J^ was a minor was a defect of substance,

but that this fact was argiimentatively alleged in the allegation that
the plaintiff was her guardian, and that as the defendant had not de-
murred to the complaint on the ground of the defect, he could not
now take advantage of it.

The defendant offered evidence of the declarations of a third person that
he was the father of the child. Held that, while the defendant would
have the right to prove, in his own exculpation, that such person was
the fatlier> yet the mere declarations of the latter that he was so were
not admissible.

And held that such declarations were not rendered admissible by the fact
that they were made at so early a time that his knowledge of her preg-
nancy would strongly tend to prove his guilt.

Declarations of the mother of the child to her own mother as to the time
when and place where the child was begotten and other circumstances
attending the matter, held admissible in corroboration of her testimony.

The prosecutrix testified that, some time after the child was begotten, the
defendant paid her a small sum of money. Held that, to rebut the pre-
sumption that this was a recognition of peculiar relations with her, the
defendant had a right to show that his wife had requested him to pay
that sum to her for a debt she owed her.

[Argued June 28th,— decided October 80th, 1889.]


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286 JANUARY, 1890.

Benton o. Starr.

Complaint under the bastardy act. The defendant was
bound over upon it, by a justice of the peace, to the Court
of Common Pleas in New Haven County, and the case was
tried in that court before Bradstreet^ J. Judgment for the
plaintiff and appeal by the defendant. Ths case is sufficiently
stated in the opinion.

J. W. Ailing and JET. O, Newton^ for the appellant.

E, P. Arvine and E. Zacher^ for the appellee.

LooMis, J. This is a bastardy suit. The complaint fii-st
alleges the capacity in which the plaintiff appeal's — " as he
is father and guardian of Fannie E. Benton," and then avers
that on the 5th of December, 1886, she was delivered of a
bastard child begotten by the defendant on or about the Ist
of March, 1886 ; that in the time of her travail at the birth
of the child she was put to the discovery and charged the
defendant with being father of the child, and has been con-
stant in her accusation ; that when the child was begotten
she was and ever since has been a single woman ; and that
the child lived until the 17th day of December, 1886, and
that she was subjected to great expense for its maintenance.
The complaint was signed by the father of Fannie alone,
but was sworn to by her and her father also. There was no
allegation that she was a minor, but the fact appeared in
evidence. The plea was a general denial.

During the trial no objection was made to the complaint,
for want eioher of proper form or substance. The trial judge
after the trial, but before his decision, called attention to
the fact that there was no allegation in the complaint that
Fannie was a minor; and afterwards, while the judge had
the case under advisement, counsel for the defendant wrote
him, claiming for the fii*st time that the suit should have
been in the name of Fannie, and this point is made one of
the prominent reasons for appeal.

There was undoubtedly a defect in the form of complaint
which could have been reached by a proper preliminary plea.


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JANUARY, 1890. 287

Benton v, Starr.

But as the general issue was pleaded and the parties confined
themselves to this issue during the entire trial, we do not
think the judgment ought now to be set aside on account of
the objections made by the defendant. The complaint on
its face shows that it was instituted solely in the plaintiflTs
capacity as guardian and for the sole benefit of his ward. It
shows that the injury was to the ward alone, and in terms avers
^ that in consequence " she was put to great expense," etc.
And it appears also that she, as well as her guardian, made
oath to the complaint; so that in substance there was a
compliance with the statute that requires the injured woman
to " complain on oath to a justice of the peace in the town
where she dwells, against the person she charges with being
the father of such child." Gen. Statutes, § 1206.

The omission to allege that Fannie was a minor was of
course a defect, but inasmuch as it is alleged that Charles
L. Benton is her guardian, which necessarily implies minor-
ity, the latter fact is argumentatively alleged, and such a
defect is waived by the omission to demur and by the plead-
ing of the general issue. Gould's Pleading, chap 3, sec. 28,
and chap. 10, sees. 18, 19.

The remaining questions for review relate to the rulings
of the court relative to the admission of evidence. The
principal complaint under this head is that the court im-
properly rejected as evidence for the defendant the declara-
tions of Alexander St. Mare, made in one instance on the
18th of June, 1886, to one Corey, to the effect that Fannie
was with child and he was the father, and again to one
Hunt on the 1st of July, 1886, to the same effect, and in
addition asking advice whether he had better leave town or
not; and still again early in August of the same year, that
he told one Bristol that Fannie was in the family way and
that he was the father of the child, and that th^y had agreed
to charge it upon the defendant.

The principle established by the decision of this court in
State V. Beaudetj 58 Conn., 542, that the defendant may ex-
culpate himself by showing the fact of another's guilt by
evidence directly connecting him with the corjms delicti^


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288 JANUARY, 1890.

Benton v, Starr.

but that disconnected declarations of third persons are to
be excluded, is conceded by both parties. But while the
plaintiff claims the principle as completely vindicating the
ruling complained of, the counsel for the defendant on the
other hand contend that the question in the case at bar is
distinguishable from that and governed by other principles.
They contend that because the act which results in bastardy
must be by the concurrence of two persons and implies a
conspiracy, therefore the declarations of any male person
as to his own guilty connection with the transaction, whom
the defendant may accuse in order to exculpate himself, is
admissible to show that the declarant and not the defendant
is the father of the bastard. If the principles governing
conspiracy, which the defendant invokes, could apply, it is
to be noticed that the declarations of the alleged co-conspir-
ator relied upon in this case were subsequent to the con-
spiracy act, and not in furtherance of any common design,
and would therefore be excluded. Besides, in order to ad-
mit the declarations of a co-conspirator, a foundation must
be previously laid by evidence which in the opinion of the
trial judge makes a primct facie case. In this case the only
foundation would be the concurrent act of the parties result-
ing in bastardy, which is the main fact in the case, and was
found against the defendant and not for him.

Again, it was claimed in behalf of the defendant that the
same reasons that allow the declarations of the mother as to
the fatherhood of the child, require and justify the admis-
sion of the declarations of the suspected father; that her
declarations are admitted because they are facts illustmtive
of her conduct, and so are part of her conduct, and are
independent facts pointing out the father.

We find equal diflSculty in accepting this reasoning. The
declarations or accusations of the mother in such cases have
never been considered by our courts as independent facts
showing the fatherhood of the child, but as corroborative
only of her testimony in court to the same effect. Booth v.
ffart, 43 Conn., 480 ; Bobbins v. Smith, 47 Conn., 182. This
kind of corroboration was at first required by statute where


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JANUARY, 1890. 289

Benton v. Starr.

the woman was the prosecutrix. For nearly a century and
a half the woman was allowed to testify under oath, while
the privilege was denied to the reputed father. But at the
same time and for his security against a possibly false oath,
the statute, in addition to the oath of the mother, required
constjincy in her accusation and that she should be put to
discovery at the time of travail. Chaplin v. Hart^home^
6 Conn., 44. This was regarded as a condition precedent
to a recovery until the law allowed all parties in interest in all
cases to testify. The statute still retains essentially the same
provisions as to corroboration, but it is now not a condition
indispensable to a recovery, but can be used to make a primd
fade case, and to throw the burden of exculpation on the de-
fendant. But whether the prosecutrix rests her case on pre-
ponderance of proof or avails herself of the provision for a
primd facte case, her constancy of accusation is still regarded
as confii-matory only of her testimony. We readily concede
however that it is a most natural and effective corrobora-
tion. We may adopt the statement made in the brief for
the defendant, and which is used to support 'the argument
we are considering, "that as matter of fact the female,
when her pregnancy becomes apparent to her friends and
acquaintances, (and apparent it must become,) will be called
upon by everybody to name the father." We may even go
further and concede that her declarations in such circum-
stances are in some sense illustrative of her condition and
conduct, and yet we fail to see any analogy between such
declarations and those now in question, made by one not
accused at all by the prosecutrix, but only by the defendant
for his own exculpation.

There is surely nothing in the condition or conduct of
such an one to be illustrated by his self-accusing declara-
tions. Were he really accused by the mother of the bastard
it would be most natural for him to deny the charge. It is
of course strange that he should voluntarily have made such
declarations, and if made, his motive cannot well be divined,
and yet we know it is possible for a reckless man to make
such statements from other motives than because they are
Vol. LVin, — 19


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290 JANUARY, 1890.

Benton v, Starr.

true, and as long as the mother of the child did not accuse
him he would naturally consider that there would be little
risk from his own accusation.

But the defendant urges another reason for admitting the
declarations. He claims to have shown that in June, 1886,
the appearance of Fannie did not excite suspicion, but that
in fact she was then with child ; and that no one knew it
but herself and the man concerned in the transaction, and

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