Town of Rumney v. Town of Allenstown

2 N.H. 470

• Court: Superior Court of New Hampshire
• Decided: May 15, 1822
• Status: Published

Opinion

Richardson, C. J.

The statute of June 27, 1809, sec. 2, (l)deciares, “ that when any person in any town or place in “ this state shall be poor and unable to maintain him or her- “ self, such person shall be relieved and maintained by the “ overseers of the poor of such town or place where such per“son shall happen to be, and in case such town or place is “ not by law chargeable with the maintenance of such poor “ person, they may, by action in any court proper to try the “ same, recover of the town or person chargeable by law “ with the m aintenance of such poor person, all Such sums u as they shall have expended about the maintenance of such “ person. Provided, that in all cases, notice in writing, sign- “ ed by a majority of said selectmen or overseers, and stat- “ ing the sums expended by them for the relief of such poor “ person, shall be given in the manner hereinafter mentioned “ to the town, place, or person chargeable by law “ with the maintenance of such poor person, within “ ninety days from the time the first relief shall have been “ so afforded.” “And no action shall be sustained against “ any town or person for any sums expended as aforesaid, “ unless such notice has been given in the manner aforesaid.”

The present action is founded upon this section of the statute, and unless the plaintiffs have shown a substantial compliance with the requisitions of the statute, it is verv clear, that the action is not maintained. The only question submitted to our decision is, whether the notice given in this case was sufficient. It has been argued that the first relief intended by the statute was the first relief actually afforded the pauper by the town; and that in all cases where a town neglects, for the space of ninety days after having relieved a paup'T, to give notice to the town chargeable, it is forever precluded from calling upon the town chargeable, for any" support whatever furnished such pauper. This construction of the statute we cannot adopt. There are many reasons which induce us to think that the legislature could not have so intended. There aro many eases in which a town cannot, with the utmost diligence, ascertain within ninety days after the first relief given, the pauper’s true place of settlement. There are other cases in which the first relief afforded is so very inconsiderable as not to be worth the time and trouble of looking up the pauper’s place of settlement. There may be some informality in a first notice which will render it of no avail, and which may not be discovered until after ninety days. The notice may from accident fail to be served within ninety days. The pauper’s settlement may be supposed to be in one town, and notice be given accordingly, when in fact his settlement is in another town, and the mistake not be discovered within ninety days.

In these instances it seems to us incredible, that the legislature could haye intended to make the town liable to support the pauper so long as be should continue in the town, merely because the town had once relieved him without giving notice to the place of his settlement within ninety days. Cannot a town gratuitously relieve a pauper in a particular instance, without being rendered liable for his future support?

It has often been ruled upon the trial of actions of this kind, that a notice, in which the first relief was stated to have been furnished more than ninety days before notice, was sufficient, but that nothing could be recovered except what had been furnished within ninety days before the notice given. To this construction of the statute, no objection is recollected ever to have been urged by counsel until lately, nor has the question now raised ever been deliberately examined by the court until within a year or two past. We have however examined the question in this case with the utmost attention, without being able to bring ourselves to believe that the construction which has heretofore been put upon the statute is the true one. Indeed we have not been able to discover any foundation whatever to support it. There are in our «pinion, two ways only, in which this clause in the statute can be construed. The one is, that the ninety days are to be reckoned from the time the first relief is in fact given to the pauper. This construction we cannot adopt for the reasons before stated. The other construction is, that by “ ninety “ days from the time the first relief shall have been so af- “ forded,” was intended ninety days from the time when the first relief, for which the town claims to be reimbursed, was afforded; that the statute, instead of limiting the recovery to ninety days previous to notice given, has limited the time of giving notice to ninety days from the time when the first relief, for which the town claims to be reimbursed, was afforded. With the policy of such a provision we have nothing to do. It is enough that the law seems to us to be so written. We are of opinion, that a notice, to be sufficient, within the intent of the statute, must be served within ninety days from the time when the first relief, for which the town claims to recover, was afforded. As it appears that the notice in this case was not served within ninety days from the time when the first relief, for which the money mentioned in the notice was expended, was afforded, the notice is insufficient, and the defendant must have judgment on the nonsuit.