Colebrook v. Stewartstown

28 N.H. 75

• Court: Superior Court of New Hampshire
• Decided: December 15, 1853
• Status: Published

Opinion

Gilchrist, C. J.

It is difficult to see on what ground it can be held that there is any variance in this case. The action is brought to recover for supplies furnished to Emily Chase, the wife of Joseph Chase, and four children, whose names are mentioned in the writ. It appears that these four children and another were living with their mother, but the plaintiffs were under no obligation to bring a suit for the supplies furnished to the child not named in the writ. The selectmen of Stewartstown acknowledged that they had received notice “ in relation to the support of the family of Joseph Chase.” Who constituted the family does not appear from the papers, but who were considered by the plaintiffs as the family appears from the declaration. There was no variance between the allegation and the proof. The allegation is that the plaintiffs furnished supplies for Emily Chase and four children. They proved that they did this, and if they chose to regard the family for whose support they sought to recover, as consisting of four children, it is competent for them so to do, and to ask nothing for the support of the fifth child. As there was no variance, the question as to the amendment does not arise, as the plaintiff might have proceeded without any amendment, and recovered for the supplies furnished on account of the children named in the writ.

The court held that payment of the taxes assessed against Thomas Chase, might be presumed after the lapse of twenty years, and that this presumption. would not be rebutted by the fact that he died about a year after the last assessment. The defendants contend that it cannot be presumed that he paid the taxes, as he died in so short a time.

In the case of Hopkinton v. Springfield, 12 N. H. Rep. 328, it appeared that Joseph Hall was an inhabitant of Springfield from 1807 to 1813, and was during that time taxed for his poll and estate. The court ruled that, after a lapse of twenty years, nothing appearing to the contrary, it might be presumed that the taxes assessed against him had been paid. Parker, C. J., says: “ A presumption of payment arises in relation to bonds, mortgages, judgments, &c., after a lapse of twenty years, if there is no evidence to repel it, and to show that the debt is still unsatisfied. Taxes cannot have any higher character, in this respect, than debts due by speciality and of record. The assessment is in the nature of a judgment, and the warrant for the collection operates like an execution. There is no reason, that we discover, why the same principles should not be applied to them.”

It does not appear from the report of this case, how long a time elapsed between the last assessment of taxes against Joseph Hall and his death. But the court make no modification or qualification of the principle. In the present case, if the lapse of twenty years after his death does not raise a presumption of payment, then it cannot be presumed from the lapse of any period of time, for, being dead, he is unable to pay it, whatever time may be limited. There being nothing to rebut the presumption, we think, therefore, that the payment may be presumed, after the lapse of twenty years from the assessment of the tax.

Ruling correct.