Salisbury v. Orange

5 N.H. 348

• Court: Superior Court of New Hampshire
• Decided: January 15, 1831
• Status: Published

Opinion

By the court.

Jonathan Hoit, the father of the pauper, was an inhabitant of Orange at the time that place was first incorporated as a town, and gained a settlement there by the act of incorporation. 4 Mass, Rep. 452, Bath v. Bowdoin ; 6 Mass. Rep. 445, Buckfield v. Gorham.

At the time Jonathan Hoit gained a settlement in Orange, the pauper was of the age of three years, but she had been given by her parents to a relative, with whom she at that time resided in another town, and never after-wards returned to reside in her father’s family. If, under these circumstances, she can be considered as emancipated when her father became settled in Orange, her settlement did not follow that of her father, and she has now no settlement in Orange. But if she was at that time unemaneipated, she acquired a settlement there with her father. The question then is, was she at that time emancipated ? On this question there can be no doubt. It was in fact settled in the case of Tamworth v. Newmarket, 3 N. H. Rep. 472. There is no pretence that a parent can emancipate his children by giving .them away. ⅞ Cowen, 537, Niskayuna v. Albany; 3 D. & E. 353, The King v. Edgworth ; 3 D. & E. 355, and 114 ; 5 B. & A. 525, The King v. Wilmington ; 1 B. & C. 345 ; 6 D. & E. 247.

It is said, that a child does not follow the settlement of the parent unless the child and parent live together when the latter gains a settlement. This is true when the child is more than twenty-one years of age when the parent gains a settlement. But it is not true in the case of children under twenty-one years of age. This distinction is clearly established by the cases cited. It is clearly settled that a child, not emancipated, and under twenty-one years of age, follows the settlement of the parents whether they reside together or not.

But it is objected, that the notice given to the town of Orange was not in law sufficient. The first objection is, that the return of the officer does not show that copies were left with the selectmen, as directed by the statute, the words of which are, “And such notice shall be served, &c. by leaving an attested copy of such notice, with his return thereon, with one, at least, of the selectmen,” &c. But we are of opinion, that giving copies to the selectmen personally, or leaving copies at their usual places of abode is a sufficient leaving, within the meaning of the statute, and we have no doubt that the return is sufficient in this respect.

Another objection to the return is, that it does not state the names of the selectmen, with whom the notice was left.

It has been decided, that a return upon a writ by an officer, that he has served the same “ according to law,” is not sufficient, because it is to be determined by the court, whether the writ has been served according to law, and to enable the court to make the determination, the facts must be stated, and what was done by the officer must be understood.

But in this case the notice was properly directed to tlie selectmen of Orange, without naming them. It was the business of the officer to ascertain who were the selectmen. If he had stated their names, it would not have added any thing to the certainty of the return, for the court could not, by seeing their names, have seen that they were selectmen. And no good reason is seen why their names should have been stated. If the officer left copies with the selectmen, the notice which the statute requires was given. Now this return states expressly and directly, that notices were left with the selectmen ⅛

And we are of opinion, that enough is stated in Ibis return to show that a legal notice was given to the town •of Orange.

Judgment on the verdict.