Daggett, J.
The first ground stated for a new trial, is, that the testimony of George Cowles and others, selectmen of Farmington, that they had received no letter from R. Webster, during the year 1824, ought to have been admitted.
The 5th sect, of the statute providing for the support of paupers, {page 370.) declares it to be the duty of the selectmen of every town, wherein a person not an inhabitant of such town, residing therein, shall become poor and unable to support him or herself, to furnish necessary support; and if the pauper belongs to any other town, to give notice of his condition to such town within a certain number of days. It also declares, that a letter put into the mail stating the name of the pauper, and that he is chargeable, signed by one of the selectmen of the town wherein he resides, directed to the selectmen of the town where he belongs, shall be sufficient evidence that notice was given, &c. The plaintiffs, on the trial of the issue joined, introduced R. Webster, a selectman of Litchfield in 1824, who testified, that on the 18th of June 1824, he deposited in the post office at Litchfield, a letter directed to the selectmen of Farmington, informing them of the condition of one of the paupers mentioned in the declaration. To repel this proof) the defendants offered George Cowles and others, selectmen of Farmington, to testify, that no such letter was received by them, or either of them, during the year 1824. An objection was taken, by the plaintiffs, to the admission of these witnesses, [108] and they were rejected. I think the testimony ought to have foeen received ; and that it was rejected from a misapprehension of the true construction of the act mentioned. The sta-^ute does indeed declare, that a letter put into the post office according to the direction therein given, shall be deemed sufficient evidence that notice was given of the condition of the pauper, &c.; but whether such letter was put into the post office, is a question of fact, to be ascertained by proof. It is open for examination, like any other fact; and being proved, the statute renders it sufficient evidence. The statute does not declare, that if a selectman shall testify, that he put a letter into the post office, &c. the other party shall be concluded by his oath. His oath is not in the nature of evidence by record, “ importing absolute verity ”
The only doubt that can here arise, is, was the testimony relevant ? Did it tend, in any degree, to repel the testimony of Webster ? It surely was not illegal; and it would be too much to say, that the testimony of these selectmen might not induce a jury to believe, that there was some mistake in relation to putting the letter into the post office ; as in its direction. If so, it was proper to be left to the jury ; and hence improperly rejected by the court.
2. Another ground of new trial, is, the rejection of the proof arising out of the papers, books, &c. of the post offices of Litchfield and Farmington, that no such letter was sent or received in the month of June, 1824. This evidence was of a still higher nature, and therefore more entitled to the attention of the jury. But an objection is here raised, that it does not appear, by the motion, that these papers, &c. were accompanied with evidence, that they were the records of these offices of all letters sent and received. This objection, according to the decision of this court, that he who objects to the opinion of the judge in a question of testimony, ought to show on the face of his motion, that it was proper evidence, is deserving of consideration. As the first ground, however, is sufficient, it is unnecessary to decide this point.
3. Another reason for a new trial is urged, viz. that the taxes mentioned in the motion, were in the tax-books, set against Asahel Moss, and not against Asahel Morse. I think the judge placed this point in its proper light to the jury. He instructed them, that if the pauper was intended by the name, Asahel Moss, a name sounding very like Asahel Morse, then [109] the objection ought not to prevail. Great strictness is required in the description of records, in names in indictments, and other criminal proceedings, and slight errors are fatal in questions of variance. The King v. Shakespeare, 10 East, 83. 85. Gordon v. Austin & al. 4 Term Rep. 611. Coole v. Hindson & al. 6 Term Rep. 234. But this misnomer, if so it may be called, stands on different ground. If the pauper was sufficiently identified to render him liable for the tax, then the statute attached upon him ; and in my opinion, he was so identified.
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Daggett, J.
The first ground stated for a new trial, is, that the testimony of George Cowles and others, selectmen of Farmington, that they had received no letter from R. Webster, during the year 1824, ought to have been admitted.
The 5th sect, of the statute providing for the support of paupers, {page 370.) declares it to be the duty of the selectmen of every town, wherein a person not an inhabitant of such town, residing therein, shall become poor and unable to support him or herself, to furnish necessary support; and if the pauper belongs to any other town, to give notice of his condition to such town within a certain number of days. It also declares, that a letter put into the mail stating the name of the pauper, and that he is chargeable, signed by one of the selectmen of the town wherein he resides, directed to the selectmen of the town where he belongs, shall be sufficient evidence that notice was given, &c. The plaintiffs, on the trial of the issue joined, introduced R. Webster, a selectman of Litchfield in 1824, who testified, that on the 18th of June 1824, he deposited in the post office at Litchfield, a letter directed to the selectmen of Farmington, informing them of the condition of one of the paupers mentioned in the declaration. To repel this proof) the defendants offered George Cowles and others, selectmen of Farmington, to testify, that no such letter was received by them, or either of them, during the year 1824. An objection was taken, by the plaintiffs, to the admission of these witnesses, [108] and they were rejected. I think the testimony ought to have foeen received ; and that it was rejected from a misapprehension of the true construction of the act mentioned. The sta-^ute does indeed declare, that a letter put into the post office according to the direction therein given, shall be deemed sufficient evidence that notice was given of the condition of the pauper, &c.; but whether such letter was put into the post office, is a question of fact, to be ascertained by proof. It is open for examination, like any other fact; and being proved, the statute renders it sufficient evidence. The statute does not declare, that if a selectman shall testify, that he put a letter into the post office, &c. the other party shall be concluded by his oath. His oath is not in the nature of evidence by record, “ importing absolute verity ”
The only doubt that can here arise, is, was the testimony relevant ? Did it tend, in any degree, to repel the testimony of Webster ? It surely was not illegal; and it would be too much to say, that the testimony of these selectmen might not induce a jury to believe, that there was some mistake in relation to putting the letter into the post office ; as in its direction. If so, it was proper to be left to the jury ; and hence improperly rejected by the court.
2. Another ground of new trial, is, the rejection of the proof arising out of the papers, books, &c. of the post offices of Litchfield and Farmington, that no such letter was sent or received in the month of June, 1824. This evidence was of a still higher nature, and therefore more entitled to the attention of the jury. But an objection is here raised, that it does not appear, by the motion, that these papers, &c. were accompanied with evidence, that they were the records of these offices of all letters sent and received. This objection, according to the decision of this court, that he who objects to the opinion of the judge in a question of testimony, ought to show on the face of his motion, that it was proper evidence, is deserving of consideration. As the first ground, however, is sufficient, it is unnecessary to decide this point.
3. Another reason for a new trial is urged, viz. that the taxes mentioned in the motion, were in the tax-books, set against Asahel Moss, and not against Asahel Morse. I think the judge placed this point in its proper light to the jury. He instructed them, that if the pauper was intended by the name, Asahel Moss, a name sounding very like Asahel Morse, then [109] the objection ought not to prevail. Great strictness is required in the description of records, in names in indictments, and other criminal proceedings, and slight errors are fatal in questions of variance. The King v. Shakespeare, 10 East, 83. 85. Gordon v. Austin & al. 4 Term Rep. 611. Coole v. Hindson & al. 6 Term Rep. 234. But this misnomer, if so it may be called, stands on different ground. If the pauper was sufficiently identified to render him liable for the tax, then the statute attached upon him ; and in my opinion, he was so identified.
4 A more important question arises on the construction of the 3d and 4th sections of the statute, tit. 51. Inhabitants, p. 280. Under that statute, can a person removing from one town to another, gain a settlement in the town to which he has removed, and in which he has resided six years, not having been chargeable to the town, nor removed therefrom, but having neglected to pay the taxes assessed and demanded ? This act was passed in 1821. In 1810, an act was passed on this subject as follows : — “ No person, who is an inhabitant of any town in this state, shall, in virtue of the six years residence in any other town in this state mentioned in the 4th section of the act to which this is an addition, (cd. of 1808. page 390 ; gain a legal settlement in the town to which he may have so removed, who shall have neglected to pay any of the lawful taxes which may have arisen against him, while so residing, within the time prescribed for payment thereof; and if any such person shall, at any time before the expiration of said term of six years, and within the time prescribed for the payment of such taxes, demand having been first made of him by the collector thereof, neglect or refuse to pay the same, in that case every such person, with his or her family, if any be, may be removed to the place of his or her last legal settlement, &c.” It is observable, that this statute absolutely forbids the gaining a settlement, if the taxes remain unpaid, having been demanded. In 1821, the legislature, with the enactment of 1810 in full view, passed the act under consideration, and repealed that of 1810. By the 3d section of the act now in force, it appears how a legal settlement can be gained, or rather, it declares that a settlement shall not be gained, unless the person have some one of the requisites enumerated in the first section, or have been possessed of a real estate of the value of 100 dollars, while he continued in the town to which he has removed, or has sup[110] ported himself for six years. His non-payment of taxes, as a prohibition of gaining a settlement, is dropped, and the language employed provides only, that he, for that neglect, may he removed, &c. It thus appears, that the law of 1810 is substantially altered, in this particular, by the law of 1821. By the latter act, the town must remove the person within the six years, and thus prevent a settlement in cases where taxes are not paid. I do not feel at liberty to construe the language of the legislature otherwise. But the counsel for the plaintiffs insist, that this act is not to be construed so as to have a retrospective effect. If A. B. had removed from C. to D., on the 1st of January 1818, while the act of 1810 was in force, and there remained till the 1st of January 1824, without having become chargeable, though he had not paid taxes demanded after January 1822, (when the law went into operation,) he has become settled in D. If so, the non payment by the pauper, of the tax of 1821, payable the 1st of May 1822, as stated in the motion, did not affect the question of settlement; and therefore, the charge of the judge, that if any of the taxes, including that of 1821, remained unpaid, after demanded, Morse, the pauper, had not gained a settlement in Litchfield, was incorrect. On the first and last ground, I would grant a new trial.
The other Judges were of the same opinion, except Brain-ard, J., who was absent.
New trial to be granted.