3 N.H. 265 | Superior Court of New Hampshire | 1825
On behalf of the plaintiff iu this case, it is contended, that the court of sessions, although authorized to settle and establish disputed lines between towns, and renew the bounds and marks of the same, had no authority to alter the lines of towns or counties ; that the order of that court, which so establishes the line between Northfield and Gilmanton, as to leave the locus in quo in Gilmanton, alters the line between those towns ; and that the doings of the sessions, not being authorized by law, are void.
That the sessions had no authority to alter the lines of towns or counties, is a proposition, that will not be disputed. The statute of February 8, 1791, entitled “ an act for regu- “ lating towns, and the choice of town officers,” sec. 1, enacts, “ that the lines between towns shall be perambulated, and “ the marks and bounds renewed, within two years from the “ passing of this act, and once every seven years forever u after, by the selectmen of each town, or by such person “ or persons as they shall, in writing, appoint for that pur- “ pose.”
And the statute of 1820, cap. 85, enacts, “ that when “ selectmen of different towns in this state, in perambulat- “ ing the lines of their several towns, disagree in renewing “ and establishing the boundaries and lines of such towns, “ the court of sessions for the county, in which such town “ is situated, are authorized, on petition to them for that “ purpose, to settle and establish such disputed line, and “ renew the bounds and marks of the same.”
And the act further declares, “ that the judgment of said “ court, upon the same, shall be recorded at large, and shall “ be of the same force and effect, as would have been the u agreement of the selectmen of said towns.”
The authority given to selectmen, to renew boundaries, has always been considered to embrace the power to settle, by agreement, the true lines between towns. And the power to settle and establish disputed lines is expressly given to the sessions. But a power to settle and establish is not a power to alter. A power to settle a line is only a power tr,
But the proposition, that the order of the sessions niters the line between Gilmanton and Northfield is not admitted. Indeed, it seems to us to have no foundation whatever, ⅛ fact. The report of the committee, which the court accepted, expressly states, that the committee establish the line as perambulated and returned by the selectmen of Gilrnan-ton and North field, in the year 1791, as the true line. There is nothing in the record of the proceedings, which indicates any attempt of the committee, or of the court, to alter the line between the two towns.
This objection, therefore, to the order of the sessions, having no foundation in fact, furnishes no ground to set aside the non- suit in this case.
Another ground, on which the plaintiff relies, to set aside the non-suit in this case, is, that the proceedings of the court of sessions were so irregular, that they must be considered as absolutely void.
Where an authority is given to a court, or to certain magistrates, to be exercised in a particular manner prescribed by a statute, their doings will be void, unless the directions of the statute are substantially pursued. Thus, when a court of common pleas was authorized to determine at what convenient place, near G. M.'s house, a gate should be erected upon a turnpike road, and the court determined that the gate should be erected at a place called M. hill, near G, Jli’s house, or at any place on said road between M. hill and the house of R. JV. M., it was held, that the location of the gate could not be considered as an execution of the power granted, and that the doings of the court could not justify the erection of the gate. 2 Mass, Rep. 102, Commonwealth vs. Heare.
And, where particular magistrates are authorized to discharge poor debtors, upon their taking a certain oath, from prison, unless the statute is pursued, their doings are void. 2 N. H. Rep 421, Flanders vs. Thompson.—1 ditto 100, Tappan vs. Bellows—12 Mass. Rep, 319, Little vs. Hasey.—8 D. & E. 424, Brown vs. Compton,
But when a court has a general jurisdiction over the subject-matter of its proceedings, its doings, however erroneous, are not void. 17 John. 145, Butler vs. Potter.—8 ditto 69, Wood vs. Peake.—2 Salk. 674, Prigg vs. Adams.
In the case now' to be decided, one objection to the proceedings of the sessions is, that due notice was not given to the town of Northfieid. But we think, this defect does not render the proceedings void, although it may be an irregularity, for which they may be quashed. In several cases in Massachusetts, where the sessions adjudged highways to be necessary, before, notice was given to the towns interested, the proceedings have been quashed upon a certiorari, but seem never to have been imagined to be void. 4 Mass, Rep. 627, Commonwealth vs. Cambridge.—3 ditto 188, Commonwealth vs. Shelden et a.—3 ditto 229, Commonwealth vs. Peters.
If then the notice given to the selectmen of Northiield cannot be considered the notice to the town, which the statute requires, still we are of opinion, that the proceedings are not void, and that their validity cannot be questioned in this case, on that ground.
Another objection to the proceedings of the sessions is, that one of the justices, without whom there was not a competent number present to do business, and who was interested in the cause, sat in the trial. In the case of Hesketh vs. Braddock, (3 Burr. 1847.) a judgment of the portmote court of the city of Chester was reversed by the great sessions for tile county of Chester, and the reversal affirmed by the court of king’s bench, because the person, who tried the cause, and the officer, who returned them, were interested in the cause. But it does not appear, that any person thought the judgment void on tnat account.
Judgment on the non-suiL
