Gilford v. Epping

12 N.H. 498

• Court: Superior Court of New Hampshire
• Decided: January 15, 1842
• Status: Published

Opinion

Up ham, J.

In this case it is conceded that the town of Epping is liable for the support of the pauper, unless, since leaving that town, the pauper has gained a settlement in Chi-chester.

It is in evidence that he removed to Chichester the 9th of February, 1792, and resided there about seven years: and he has his settlement in Chichester, unless he was legally warned out of that towu.

His residence commenced there under the provincial act of 5 George /., about seven months prior to its repeal by the act of June 20th, 1792, which went into operation on the 15th of September, 1792.

The act of June 20th, 1792, repealed a large number of acts, which had been superseded by a revision of the statutes, and it contained a proviso, “ that the repealed acts or laws should be in force, as to all matters done, or transacted, during their existence to which they relate, to all intents and purposes, as though the repealing act had not been made ; and that all such matters might be prosecuted, commenced, done and completed at any time thereafter, pursuant to said laws.” Lates N. H. 486, (Ed. 1815.)

The expressions in the proviso are general, and were designed to save any proceedings commenced, or rights acquired, under the numerous acts repealed by this statute. And the question arises in this case, whether the saving clause, or proviso, extended to cases of residence commenced under the former act. so as to retain such cases within its provisions, and to subject the town to a pursuance of proceedings in such cases in conformity to the provisions of the repealed act.

We are of opinion that the mere commencement of a residence under the former act is not one of the acts done and transacted, which was intended to be saved by the proviso.

In the first place, there was no occasion for any reference in the proviso to a residence, commenced under the prior act, for the reason that the new act itself included past residences, as it provides “ that every person who hath lived one year in any town, or place, shall be deemed an inhabitant of such town or place, unless some time within such year, or before the expiration thereof, he shall have been warned to depart.” 1 Laws N. H. 356, (Ed. 1815.) There is no reason, therefore, to suppose that the saving clause of the new act extended to cases of this kind in the old, which were equally preserved and enforced under the provisions of the new act.

This construction of the law harmonizes with the views of the court in the case of Exeter vs. Stratham, 2 N. H. Rep. 102, in relation to this point. That decision in other respects has been overruled in the case, Gilford vs. New-Market, decided in the county of Strafford, March term, 1833 ; and in Nottingham vs. Barrington, 6 N. II. Rep. 302, but remains unaffected on the point to which it is now cited.

In the last cases named, a warrant had been issued and served under the prior act; and it was holden to be “ an act done and transacted” under the old law, which might be “ prosecuted and completed” by force of the proviso, in the same manner as though the act had not been repealed.

In the case before us, nothing has been done under the former act, except the mere fact of a residence commenced under it, which is equally provided for by the new act. The warrant in this case was issued, served and returned, after the act went into effect, and there was nothing on which the proviso could operate to retain the old law in force. While we fully sustain the correctness of the cases of Gil-ford vs. New-Market, g,nd Nottingham vs. Barrington,; as coming within the provisions of the former act, it is equally clear, and results necessarily from the principle of those cases, that the warning out in this case should be under the provisions of the new statute. In Nottingham vs. Barring-ton the marginal note goes beyond the facts in the case, and should be limited to the point decided.

With these views of the law, as applicable to this case, the pauper was duly warned out from Chichester, and there must be

Judgment for the plaintiff.