History of the town of Milford, Worcester county, Massachusetts, from its first settlement to 1881, Part 43

Author: Ballou, Adin, 1803-1890
Publication date: 1882
Publisher: Boston : Rand, Avery, & co.
Number of Pages: 1328

USA > Massachusetts > Worcester County > Milford > History of the town of Milford, Worcester county, Massachusetts, from its first settlement to 1881 > Part 43

Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).

" SECTION 1. Any of the persons described in the first section of the " Act concerning truant children and absentees from school," approved on the thirtieth day of April, in the year one thousand eight hundred and sixty-two, upon conviction of any offence therein described, shall be pun- ished by a fine not exceeding twenty dollars, or by confinement for a term not exceeding two years in the place hereinafter designated.

" SECT. 2. The Selectmen shall annually, in the month of March, appoint three persons, who shall alone be authorized, in case of violation of these By-Laws, to make complaint and carry into execution the sentence thereon, and who shall be known as Truant officers, and who shall receive for their services the same rate of compensation as Constables of the town receive for

373

BY-LAWS CONCERNING TRUANTS.

their services : provided, that for the present year said Truant Officers shall be appointed immediately after the adoption and approval of these By-Laws.

"SECT. 3. In case a Truant Officer shall find any person between the ages of seven and sixteen years, belonging to any of the public schools in said town of Milford, during school hours, wandering about in or near any street, square, common, lane or by-way, or at any public place of resort or amuse- ment, without sufficient excuse for this absence from school, he shall appre- hend such person, and take him to his school in case he shall not deem it proper to file a complaint against the offender, and shall forthwith notify the parent or guardian of the child of his doings in the premises.

"SECT. 4. The Truant Officers shall keep a true record of their proceed- ings-of the number of offences noticed, complaints made, acquitals or corrections had, and the punishments awarded therefor, and the names of the parties dealt with, together with the names of their parents or guardians, a copy of which, with a statement in detail of the cost to the town of their services, and the amount of fines, received, shall be delivered to the School Committee annually, on or about the fifteenth day of February; and the School Committee shall incorporate the substauce of these records into their reports, for the information of the town.

"SECT. 5. The Reform School of Worcester is hereby assigned and pro- vided as the institution of instruction, house of reformation, or suitable situation mentioned in section second of the Act aforesaid.

"SECT. 6. The Justice of the Court having jurisdiction in the cases arising under these By-Laws shall receive for his services the fees allowed by law in criminal cases.

Attest : LEWIS FALES, Town Clerk.

" A true copy of Town Record. Attest : LEWIS FALES, Town Clerk.

" SUFFOLK, SS.

Superior Court, Oct. Term, 1864.

" The foregoing By-Laws of the Town of Milford are approved.

CHARLES ALLEN, Chief Justice.

A true copy, Attest : LEWIS FALES, Town Clerk."

ENFORCEMENT, ETC.

So far as I am informed, the foregoing by-laws have been as well respected, enforced, and operatively salutary as those of any other municipality. There are always more or less persons in every com- munity who transgress its laws. Most of these do so through igno- rance, inadvertence, or unmalicious self-indulgence ; the minority from sheer lawlessness or wilful viciousness. Our town is no excep- tion. As a general rule its authorities have wisely avoided needless severity, and relied more on moral than legal enforcements, reserving the latter for obviously hard cases. The result has been general

374

HISTORY OF MILFORD.

good order, and fewer criminal outrages than in some communi- ties claiming a more puritanic religious and civil standing. What may be called the frolicsome spirit of our population is, perhaps, more difficult to restrain than the brutal vices. This is seen some- times in fast exploits, fun-making, high good times, and especially in the 4th of July racket-patriotism of " Young America." The last is a good-natured but mischievous nuisance here, as elsewhere gen- erally, and very difficult to abate ; but, on the whole, Milford, though lively, is a law-abiding community.

IMPORTANT LAWSUITS AND REPORTS OF THE SAME.

The matter of this section is an acceptable contribution from the pen of Thomas G. Kent, Esq., one of our ablest lawyers. I welcomed the same appreciatively, and present it to the reader exactly in his own words and legal phraseology. The great controversy between our two parties, " Town Party " and " Parish Party," to which Mr. Kent refers in his opening paragraph, has been more or less distinctly alluded to in preceding chapters of this work, particularly in Chap. X., on Religious Societies. The litigation which was evolved by this controversy, as well as other suits included in the reports collated by Mr. Kent, raised some subtle and important law questions, the adju- dication of which had not merely a local interest, but a wide-spread one throughout our Commonwealth and country. This section will, therefore, be valuable, not only to the people of our own town, living and yet unborn, but to many outside readers of our history. How muchsoever the discords and litigations which began here in 1819 were to be deprecated for the unhappiness attendant and consequent npon them, they were certainly overruled for good. The intense rivalry they inspired increased enterprise, disciplined mind, drew in earnest immigrants, stimulated business, multiplied wealth, created new social centres, and advanced both physical and mental progress. Thus we may reverently adore and trust that all-wise Providence which never permits evil to frustrate his all-comprehending benevo- lence.

MR. KENT'S ARTICLE.

The history of a town is hardly complete without a record of its litigation. The strife at the time may cause anger and bitterness ; but the result may serve to stimulate, and in the end to develop, the energies, and advance the prosperity, of both parties and of the whole town. Such has been the effect in Milford. A memorable contro- versy, about threescore years ago, brought into existence the old

375

SUITS WITH OTHER TOWNS.

brick town-house, the old brick church, and the lower town hotel. Only those cases that have been of sufficient importance to be passed upon by the highest court, and that are found in the published reports, are inserted here. The attempt has been to eolleet all those eases where the town was directly or indirectly interested sinee its ineor- poration. Of course no suits between private parties are ineluded.

The cases are given in the order of their dates : -

MILFORD VS. WORCESTER (7 Mass. 48, 1810).

In this action the settlement of Rhoda Temple, alleged by the plaintiff to be the wife of Stephen Temple and mother of their six children, was in controversy.

It was agreed that Stephen had his legal settlement in Worcester, and also that Rhoda and the six children belonged to Woreester if Stephen and Rhoda were lawfully married. The dispute related to the legality of the marriage.

It was proved that Stephen and Rhoda, in 1784, resided in Upton, that there was recorded in Upton a certificate of their intention to marry, and that some time in that year they went together to a tavern in Upton, produced their certifieate, and that one - Dorr, Esq., 1 a justice of the peace, happened to be present. They requested him to marry them ; but he, for some eause, refused "to take an active part." The parties, however, bent on marriage, remained in the room where Esquire Dorr was present ; and Stephen declared that he took Rhoda as his lawful wife, and she deelared that she took him as her lawful husband.

Some of the testimony tended to prove that Dorr encouraged the parties in this ; but he denied it. The jury found against the validity of the marriage. The ease went to the full court, upon the question whether the mutual engagement of the parties in this ease to take each other for husband and wife in the room where a justice of the peace was present, he not assenting, but refusing to solemnize the aet, was a lawful marriage ; and the court decided that it was not.

Hastings for plaintiffs, Lincoln for defendants.

(This rule has been modified by later statutes, and by the court in Myers v. Pope, 110 Mass. 314).

MILFORD VS. BELLINGHAM (16 Mass. 107, 1819).

This action was brought to recover the expense of supporting Bess Corbett, a negro woman. Nothing was in controversy except the 1 Probably Joseph Dorr, Esq., of Mendon.

376

HISTORY OF MILFORD.

settlement of the woman. She was originally the slave of Dr. Corbett of Bellingham. The defendant town claimed that Dr. Cor- bett had given her to his grand-daughter, Esther Messenger, when she married Col. Frost of Milford.1 In proof of this they relied on the declarations of Dr. Corbett at the time Bess left his house for that of Col. Frost, and on those of Esther, the wife of Col. Frost. The latter denied that Bess ever belonged to him or his wife as a slave. The jury found for the defendant town, and there was a judgment against the town of Milford.

Same counsel as in last case.

Thus far the records show lawsuits only with stranger towns, foreign wars, as it were, which would not be likely to engender much personal feeling ; but about this time there broke out a controversy among the inhabitants, a sort of civil war, that shook the town to its centre, and created a hostility that for many years found its way into the public business and social relations of the inhabitants, that even to this day has not been wholly obliterated.

The original difference was semi-religious. The Town, from its foundation in 1780, had year by year raised, by taxation of all its inhabitants, a sufficient sum to support the minister of the First Con- gregational Parish. The town-meetings had always been held in the meeting-house.

But it so happened, after a time, that the rigid doctrines preached by the Rev. David Long were not acceptable to all the people, princi- pally to those residing in the lower village and towards the North Purchase ; and they separated or seceded from the old parish, and formed themselves into a new society, and soon after built the brick church. The Parish, which was in existence prior to the incorporation of the town, thereupon assumed to control the meeting-house, and sold it ; and it was removed from its former site near the spot on which the present edifice stands, and made a part of the hotel then standing near the present location of the Mansion House.

This action was prolific of lawsuits. First came Milford vs. God- frey and others (1 Pick. 91, 1822).

This lawsuit was prosecuted to see whether the Town, or the Parish, owned the meeting-house. The land on which the meeting-house stood was conveyed to the Precinct, in 1748, by Ichabod Robinson, the meeting-house having been previously built. In 1780, upon a petition of the Precinct, the territory embraced therein was created the Town of Milford. From that time till 1815, a period of thirty-five years, the meeting-house was occupied by the Town for its town-meetings,

1 Amariah Frost, jun., to whom I have nowhere else seen the title Col. given.

377

INTERNAL LAW-SUITS.

and all parochial affairs were managed by the Town. The Town employed the minister, enlarged and repaired the meeting-house, and employed a person to take care of it; and the Parish did not mean- time choose officers or otherwise actively organize. In 1815 they did so organize, and from that time forward they kept the key of the house in their possession, and in 1818 they removed the old meeting- house, and erected a new one. The action was trespass for this removal. The defendants, who acted under the authority of the Parish, claimed that the Town had no such title as would enable them to maintain their action. The court decided, that, although the affairs of the Parish had been conducted in the form of town- meetings, yet that the Town acted in these matters rather as the agent of the Parish than on its own account; that the acts of the Town in relation to the meeting-house were done in their parochial capacity, and therefore gave them no right in their municipal char- acter; and that the use of the house for public municipal purposes could give no right of property, nor was it any thing like exclusive possession while the society had the use of it every sabbath for the purposes for which it was built ; and the plaintiffs were non-suited.

Lincoln and Newton for plaintiffs, Hastings and Mills for defend- ants.

The meeting-house, in which all town-meetings had hitherto been held, having been removed, the place of holding future town-meet- ings became matter of controversy. The representatives of the Parish, who still held control of the old building, offered to permit the Town still to use the same building in its new place; but the other party, irritated by the removal, rejected this offer, and secured a vote of The town to build a new town-house, under which vote the old brick town-house was built. There were then no buildings on the east side of Main Street from the present location of Central Street to the Hopkinton R. Rd. crossing, save a small Masonic Hall and a barn. After the town-house was built, the Parish party refused to pay their tax assessed for the year 1819, including the expense of the new town-house. The tax-collector seized the property of indi- viduals, usually a horse and chaise, and these were advertised and sold at auction on the site of the present Mansion House Park, amid great excitement ; and so the tax was collected. But this was not the end of it. The parties who had submitted to the sale of their property sued the assessors, Henry Nelson, David Stearns, and James Perry, for carrying away their goods, alleging that the tax was void.

Thus arose the case of Thayer vs. Stearns and others (1 Pick. 109,

378

HISTORY OF MILFORD.

1822) ; and the question first raised and decided was merely tech- nical. It was this. The plaintiff claimed that there was no evidence that the meeting at which the defendants were chosen assessors was duly held. The constable's return on the warrant was dated the day the meeting was held, in which he certified only that he warned the inhabitants by posting up copies, without saying at what time. The original warrant had been lost, and the defendants offered to prove by verbal testimony that a paper purporting to be a copy of the war- rant was duly posted in the time and manner required ; but the court below held this evidence to be inadmissible, and there was a verdict for the plaintiff : but the full court reversed this decision, and there was a new trial. The following year, the case, having been tried again, went to the full court, and was decided by a judgment for the plaintiff, on these grounds : 1st, that the town, State, and county taxes were included in one assessment (since allowed by a change of statute) ; and, 2d, that the valuation on which the assessment was based was not lodged in any office of the town-clerk or assessors, as by law was required. This was a test case, deciding the whole tax for that year to be illegal ; and the assessors thereupon proceeded to pay out of their own pockets all the money that had been collected by compulsion on the tax of that year.

Then followed the case of Henry Nelson vs. Milford (7 Pick. 18, 1828). The Town in 1824 voted to assess the tax of 1819 over again, and to collect the same, taking the receipts of such as had voluntarily paid the former tax in discharge of their liability, and to pay over to Henry Nelson and others the sums they had advanced and paid for the use of the town. In 1825 the Town reversed, re- voked, and repealed said vote; and this suit was brought on the strength of the first vote as a promise on good consideration. The court held, that, without the first vote or some special promise, the action could not be maintained, but that the vote of 1824 was a bind- ing promise on good consideration, and that the same could not be revoked so far as it related to the Town tax, but so far as it covered money paid for State and county purposes it was without consid- eration, and void.

Hastings for plaintiff, Rawson and Newton for defendants.

WORCESTER US. MILFORD (18 Pick. 379, 1836).

This was an action to recover a small sum paid by the plaintiff town to the trustees of the State Lunatic Asylum for the support of Russell Cheney. It was conceded that Russell Cheney had a legal settlement in Milford ; but the defendants sought to avoid their liability on the

379

MISCELLANEOUS SUITS.

ground that they were not seasonably notified. The facts were agreed, and the court held that the defendants were liable.

Merrick for plaintiff, Hastings for defendants.

MEDWAY US. MILFORD (21 Pick. 349, 1838).

The town of Medway was called upon to assist, and did assist, Asia Madden and his family as paupers, whose legal settlement was in Milford.

Notice having been given to Milford, they forthwith proceeded to settle the matter. They paid the town of Medway at the rate of one dollar a week for the past expense, and arranged with one Joseph Desper to continue to support the family in Medway at their expense. The statutes provided, that if the pauper was removed within thirty days after notice from the town rendering support, that such town should not receive more than one dollar a week from the town in which the pauper had his legal settlement. Pursuant to the said agreement with Joseph Desper, the pauper was not removed, and the town of Medway sought to recover the actual expense of his support without regard to the statute limitation and the above settlement ; but the court held that the settlement was conclusive, and refused to open the matter.

Metcalf for plaintiffs, Washburn for defendants.

CORNELIUS T. DAY US. MILFORD (5 Allen, 98, 1862).

The plaintiff sought to recover damages to his person, resulting from the fall of an awning projecting over the street. A heavy fall of snow took place a few hours before the accident.

The rule adopted by the court was, that the town would be liable under such circumstances, if the awning had been, for the space of twenty-four hours before the happening of the accident, so frail that in the winds, rains, and snows ordinarily occurring in this climate, it was likely to fall, and did fall from such cause, although the direct cause was snow which fell thereon less than twenty-four hours before ; and the verdict was for the plaintiff.

Dewey and Staples for plaintiff, Bacon and Aldrich for defendant.

MILFORD US. HOLBROOK (9 Allen, 17, 1864).

This suit arose out of the same accident described in the last case, and was brought to recover of the owner of the building to which the defective awning was attached the amount of the judgment against the town in that case. At the time said first suit was brought, said Holbrook was notified to take upon himself the defence of that suit ;

380

HISTORY OF MILFORD.

but he failed to do so. The defendant sought to avoid his liability, on the ground that the tenants who occupied the premises were liable, and that he was not; but, under the peculiar facts of the case, the court held him liable, and the verdict was for the plaintiff.

Same counsel as in last case.

WAREHAM US. MILFORD (105 Mass. 293, 1870).

An action to recover for money paid for the support of Davis Dunham as a panper. The question was on the fact of the settlement of Dunham. He resided in Milford for ten years together, and paid taxes for five years within that time ; but the defendants contended that he did not thereby gain a settlement, because that, during that time, his wife received some aid from the public authorities of Fall River. It appeared that the same was furnished without said Dun- ham's knowledge, and he has never been called on to pay the same.

The court held that the facts did not prevent his gaining a settle- ment in Milford, and there was judgment for the plaintiff.

Miller and Ames for plaintiff, Fales for defendant.

ALLEN C. FAY AND OTHERS VS. MILFORD (124 Mass. 1878).

The plaintiffs were owners of lots in Vernon-grove Cemetery, belonging to the town. When this cemetery was established, a town cemetery, near the railroad depots, ceased to be a burying-place ; and the remains interred therein were removed to other cemeteries, but mostly to Pine-grove Cemetery, under a vote passed in 1859, "that the Town will give in exchange lots in the new cemetery free of ex- pense to those holding lots in the old, and remove the remains of friends from the old to the new, or to any other cemetery as may be desired, free of charge under their supervision and direction if desired."

In 1861 the Town adopted a code of by-laws for the management of the Vernon-grove Cemetery, and among other articles the following was adopted : " All moneys received by the trustees for the lots in this cemetery, and the avails of all lots received in exchange for said lots, shall constitute a fund for the purpose of defraying the expense of repairing and improving the avenues, walks, and public grounds in the cemetery." The Town, in 1867 and 1869, had sold the old cemetery near the depot for a large sum : and the plaintiffs claimed that the passage of said article as one of the by-laws constituted a contract on the part of the Town with all the lot-owners in the new cemetery, that the proceeds of the sale of the old lot should be ap- plied to the keeping the avenues, etc., in the new cemetery in repair ;

381

CRIMINAL STATUS OF OUR TOWN.

but the court held that said by-law did not constitute a contract on the part of the Town, and the action was dismissed.

Nelson for plaintiffs, Kent for defendant.

In the suit of First Congregational Parish of Milford against the town of Milford, the plaintiff claimed that the old burying-ground on School Strect belonged to the parish, and brought this suit to recover possession. The defendant, the Town, denied,

1st, That the Parish ever owned the land.

2d, They claimed that if the Parish did own the land at the date of the incorporation of the town, the property forthwith vested in the Town, the Town had appropriated the property to a municipal pur- pose, which prevented it from reverting to the Parish.

3d, They claimed that the Town had acquired a valid title by adverse possession.

The case was tried without a jury in March, and the court has now ordered judgment for the defendant, the Town. The case was determined on the ground of a valid title in the Town by adverse pos- session.

Bacon, Hopkins, and Bacon, and H. E. Fales, for plaintiff ; T. G. Kent and Geo. G. Parker for defendant.

CRIMINAL STATUS OF MILFORD SINCE A TOWN.

I have once or twice alluded to this matter, and intended to col- lect reliable information from judicial records and traditional sources, with a view to show the criminal status of our population during the century now closing. I was prompted to this by a knowledge of the fact that in former times, and to a certain extent recently, some of our neighboring towns have inclined to cherish a prejudice to our dis- credit as a hot-bed of moral depravity. This prejudice had its origin in the sincere belief that heterodoxy and heresy, such as began to prevail here three-quarters of a century ago, must tend to gross licen- tionsness. A new ground of suspicion to the same effect followed the great influx of Irish Catholics. But results have not justified the prejudice from either of these dreaded causes. So far as what may be called civil morality is concerned, I feel warranted, by my in- quiries and observations, in stating that no municipal population in this general section of the Commonwealth has been freer from gross criminality than ours. Murders, highway robberies, rapes, burglaries, and brutal personal outrages have been comparatively few and far between on our territory from 1780 to 1880. I think almost any town in our vicinity can easily reckon up a greater number. This is no cause for boasting, though it is for thankfulness that our inhabitants

382

HISTORY OF MILFORD.

have been no worse, considering that their neighbors were so con- fident that they must be uncommonly vicious. We have had quite enough of the smaller crimes and disorders to humble us, as well as to tax our resources of repression and reform. But even these can- not be deemed exceptionally predominant or aggravated. Whatever be the cause, there seems to be in our municipal atmosphere very strong elements of justice, humanity, and benevolence ; and though these are not strong enough to overcome the causes of vice, reckless- ness, and folly, they certainly do diminish those brutal and cruel passions which often co-exist in some communities side by side with great religious stringency. Instead, therefore, of presenting any broad array of criminal statistics to show the relative moral laxity of Milford and its neighbors, I will content myself with the foregoing suggestions, and with appending an article from the "Milford Jour- nal " of 1879, which I presume was inspired, if not verbally indited, by our worthy Justice, C. A. Dewey, Esq., of the District Police Court. Its shades are darker than I could wish, but on the whole tinged with rays of hopefulness.

Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.

History of the town of Milford, Worcester county, Massachusetts, from its first settlement to 1881, Part 43

Author: Ballou, Adin, 1803-1890 Publication date: 1882 Publisher: Boston : Rand, Avery, & co. Number of Pages: 1328

Author: Ballou, Adin, 1803-1890
Publication date: 1882
Publisher: Boston : Rand, Avery, & co.
Number of Pages: 1328