Town of Nottingham v. Town of Barrington

6 N.H. 302

• Court: Superior Court of New Hampshire
• Decided: December 15, 1833
• Status: Published

Opinion

U ph a si, J.

delivered the opinion of the court,

McDaniel removed to Nottingham some months prior to March 3d, 1795, and resided there from that time till his death, in 1829. The precise lime when he removed to Nottingham does not appear. The statute of 1791, which declared that a settlement should be gained by residing in a town a year without being warned to depart, was repealed on the 1st of January, 1796, since which time no settlement could be gained iiythis state by residing in a town a year. It is, then, clear, that unless McDaniel removed to Nottingham prior to January 1st, 1795, he gained no settlement there by residence.

It is not disputed that he had a settlement in Barring, tort when he removed to Nottingham. The burthen of proof was then upon Barrington to show that he gained a settlement in Nottingham. And as it was not shown that he removed to Nottingham early enough to gain a settlement under the statute of 1791, before it was repealed, his settlement must be consideradlas remaining in Barrington.

If it had appeared that McDaniel went to Nottingham before the 1st of January, 1795, the exception that the warning does not appear to have been returned lo the clerk’s office within a year from the time he went to Nottingham, must have prevailed. If he resided there a year before the repeal of the statute, he gained a settlement, unless duly warned to depart; and the burthen of showing the warning completed within the year by a return of the warrant, would have been upon Nottingham. But this point is unessential until the residence required by statute has been proved, and as this has not been done, the plaintiff is entitled to recover the amount of McDaniel’s support.

It is not disputed that Hill was settled in Barrington unless he gained a settlement in Nottingham. He removed to Nottingham, March 5, 1792. The provincial act was repealed the 15th of September, 1792, and of course' he gained no settlement under that act by residing in Nottingham a year, unless the proviso in the repealing act continued the provincial act in force. In the case of Gilford v. New Market, in the county of Strafford, March term, 1833, this court was unanimously of opinion that the proviso had this effect, and the cases militating with this decision were thereby overruled. Exeter v, Stratham, 2 N. H. Rep. 102. Hill resided in Nottingham for several years succeeding his removal to that town, and he therefore gained a settlement there, unless duly warned out in conformity to the provincial act- By that act the time of the pauper’s residence in town must be stated, either in the warning, or the officer’s return. That this fact should appear was decided in the case Loudon v. Deering, 1 N. H. Rep. 13, and the same question was decided in 10 Mass. Hamilton v. Ipswich, 506. As the time of residence in this ease is not stated, either in tire warning, or the officers return, the warning is defective, and for aught that appears, Hill’s settlement is still in Nottingham, The ve>' d¡0t jSj therefore, erroneous, as regards any sums expended for his support.

It is objected that the notice of the sums expended for the support of the paupers, by the town of Nottingham, does not appear to have been signed by a major part of the selectmen. But it is well known that towns in this state, very rarely, if ever, choose more than three selectmen, and we think it may very safely be presumed that there were no more than three selectmen in Nottingham until the contrary is shown. We should the more readily act upon such a presumption in cases of this kind, because if the fact be otherwise, in any case, it can be easily shown by the records of the town.

These notices are usually signed by two or three persons as selectmen, and no one has before ever thought of requiring evidence that they were a major part of the selectmen. 2 N. H. Rep. 470 and 530; 5 ditto, 348.

This exception does not prevail, but as a general verdict was rendered in behalf of the plaintiff for the support of both the paupers, and for the reasons assigned, it is erroneous as regards one of them, and the verdict must be set aside, and a

JS'ew trial granted.