32 N.H. 245 | N.H. | 1855
The case presents three questions for consideration. First, did the separation of the Hayes farm from Alton and its annexation to Barnstead, in 1840, transfer the settlement of Abigail Twombly, if she then had one in Alton through her father, from Alton to Barnstead ; secondly, did the act of 1841,
By the 7th section of the act of the 16th of December, 1828, Laws of 1829, 301, in force in 1840, when the Hayes farm was severed from Alton and annexed to Barnstead, “ upon division of towns, every person having a settlement in them, but being removed therefrom at the time of such division, and not having a settlement elsewhere, shall have his settlement in that town wherein his former home or dwelling-place shall be upon such division.” The natural and obvious construction of this language is, that upon any division of a town by the separation of a portion of its territory from the rest, every person having a settlement in the divided town, but absent therefrom at the time of the division, shall thereafter have his settlement in that town in wlych his former home or dwelling-place shall fall. Had there been no decisions elsewhere upon the construction of a similar statute, we should not have believed the wTords were susceptible of any other interpretation. But in Hallowell v. Bowdoinham, 1 Greenleaf 129; Fitchburg v. Westminster, 1 Pick. 144, and Lexington v. Burlington, 19 Pick. 426, cited by the plaintiff’s counsel, a different construction was given to the Massachusetts statute of 1793, almost identical in phraseology with that now under consideration; and it was in effect holden in those cases, that a town was not divided, within the meaning of this clause of the statute, unless separated into two or more parts so nearly equal that each was made into a town. We have carefully examined the decisions in those cases, and are satisfied neither with their reasonings or their result.
In Hallowell v. Bowdoinham, where the question was similar to the one raised in the case before us, the court, after remarking that the language we have quoted from the act of 1828, “ seems to have in view such a division of a town as shall pro
The decision in Fitchburg v. Westminster seems to rest mainly upon the assumed hardship of having the settlement, as well of the former residents as of the present occupants, transferred with the annexed territory, and upon the respectable character of the court in Hallowell v. Bowdoinham. In Lexington v. Burlington the decision in Fitchburg v. Westminster is said to be entirely decisive.
In our judgment, the question before us is determined by the clear and definite terms of the statute itself. The language is simple, unequivocal, unambiguous, and fairly capable of only one interpretation. A town is divided whenever any portion of its territory is separated from the rest, without regard to the comparative size of the parts into which it is severed. The statute expressly enacts, that, upon such division, all persons then absent, but having a settlement in the town whose territory has been dissevered, shall afterwards have their settlement in the
It was conceded in the argument, and is admitted in all the cases in Massachusetts and Maine, that if a new town is made from the severed portion of an old one, the settlement of absent paupers goes with their homes into the new town. It is difficult to perceive why, if a new town is created within the meaning of the second clause of the statute whenever part of one old town is annexed to another, for the purpose of changing the settle
But the construction of the statute for which the defendants contend, if carried out as it might be in many cases, completely nullifies and destroys the statute. Suppose that one piece after another, year after year, is severed from an old town and annexed to the adjoining towns, until the whole is annexed, what then becomes of the settlement of nonresident paupers ? Or, what is not unfrequently the case, suppose the whole town is divided into four or five tracts, and these are severally annexed to adjoining towns at the same time, where are absent paupers to be supported ? It is evident their settlement must be wholly lost, and the burden of their maintenance thrown entirely upon the counties where they happen to be found. Such a result seems to us clearly to demonstrate the unsoundness of the construction which leads to it. It may be said that the Legislature would provide for such a contingency, but this could hardly be done otherwise than by reenacting and applying to that particular case the precise provisions, as we regard them, of the statute now under consideration.
Such being our views of the design and intention of the Leglature in its enactment, and of the principle intended to be established by the clause of the statute in question, as well as
As to the second question raised in this case, it is an established rule that a wife by her marriage acquires the settlement of her husband, if he has any in this State. Revised Statutes, chap. 65, sec. 1; Comp. Stat. 157. And by a settlement acquired in one place, all former settlements are lost. Rev. Stat., chap. 65, sec. 4 ; Comp. Stat. 158.
From these principles it would follow, that if Lemuel Twombly, jr., had a derivative settlement in Rochester at the time of his marriage, acquired under laws passed before 1796, his wife by her marriage with him before the passage of the act of 1841, (2 Laws 531, chap. 605,) lost her previous settlement and acquired that of her husband, and, under the last mentioned statute, the liability of the town in which her husband’s settlement and her own existed, ceased from its passage.
The marriage of the pauper’s father is stated to have occurred before 1823, consequently the mother had lost her settlement in Alton, and enjoyed her husband’s settlement in Rochester nearly twenty years before the change in the law took place, and could not afterwards have any derivative settlement in Alton, unless
Upon the remaining point, whether the plaintiffs were bound to prove that Lemuel Twombly gained no settlement in this State between January, 1796, and 1801, we think there can be no doubt. On general principles, the plaintiff affirming the existence or non-existence of facts, or a state of facts essential to his right of recovery, is bound to prove the existence or nonexistence of what he avers, and what is essential to his right of recovery.
Nor does it change the rule that the averment is negative. The proof may be more difficult, but is not the less imperative. Less evidence may be sufficient, but the plaintiff is not the less bound to satisfy the jury that what he alleges is true.
In Wilmington v. Burlington, 4 Pick. 176, which was a suit for the support of a pauper, on the trial of which a question almost precisely like that now under consideration was raised, the court say: “ It was incumbent on the plaintiffs to show, first, that the father of the pauper had not a settlement within the commonwealth; for though this is a negative in appearance, yet it is proved by showing where he did belong. Otherwise the plaintiffs would always rest their case, upon proving that the mother had a settlement in the defendant town.”
When the plaintiffs ground their right of action upon a negative allegation, and when, of course, the establishment of this negative is an essential element in their case, then the proposition affirmed, though negative in its terms, must be proved by the party who states it. 1 Greenleaf’s Ev. 93, § 78, and authorities.
The same degree of evidence as in case of an affirmative allegation can hardly be expected, but it must be supported by prima fade proof. Perhaps it would be sufficient if such evidence were offered as, in the absence of counter testimony,
That it was necessary for the plaintiffs to aver and prove the settlement of Abigail Twombly in Alton, and that her husband had gained no settlement elsewhere in this State, is clear from the statute and adjudged cases. Rev. Stat., chap. 65, sec. 1; Salem v. Andover, 3 Mass. 436.
The language of the statute is: “A married woman shall have the settlement of her husband, if he has, or shall acquire any in this State, otherwise her settlement at the time of her marriage shall continue.”
In this case, if Lemuel Twombly acquired any settlement in this State after January 1, 1796, his son and his son’s wife would have it; and before the plaintiff’s could claim to rely on the settlement his son’s wife had at her marriage, it was incumbent on them to show that her husband’s father acquired none in this State, as well from January, 1796, to 1801, as after that time.
Such being our views of the validity of the various objections to the plaintiff’s right to recover, there must be
Judgment for the defendants.