Jaffrey v. Mont Vernon

8 N.H. 436 | Superior Court of New Hampshire | 1837

Upham, J.

The pauper for whose support the expenses were incurred in this case, derives his settlement from his father, Jonathan Wilkins, whose original settlement was in Mont Vernon, and the only question the case presents is, whether said Wilkins retained his settlement in Chat town, or acquired a new one for himself and family by a residence in the town of Peterborough.

'Phis depends upon the validity of a warning and return served upon him while a resident in Peterborough.

The warning was in 1794, and the statute then in force in relation to this subject was passed February 15, 1791. This statute provides, “ that every person who hath lived ‘ one year in any town or place, shall be deemed an inhabi- ‘ taut of such town or place, unless some time within such ‘ year, and before the expiration thereof, such person shall ‘ have been by warrant from the selectmen of such town or ¡ place, directed to any constable thereof, or other person to ‘ whom they may think proper to direct the same, warned. ! to depart from such town or place, and the said warrant, ‘ and the return of such warning made by the person to ( whom directed, within the time aforesaid, returned to the ‘ clerk of the Court of General Sessions of the Peace of the ‘ same county, which shall be put on file by the clerk, and ‘ a minute made of the time of receiving the same.” N. H. Laws 356; ed. 1815.

The principal objection taken to the warrant is, that there was no specific action of the selectmen relative to Jonathan Wilkins; and it is clear from the case, that the warrant is manifestly bad, unless a general warrant to the constable to warn out any body he thinks proper, is good.

The process of warning individuals to leave town, in order to prevent their gaining a settlement, is analogous to the English practice of orders of removal, by justices of the sessions. The design in both cases is to impose the bur-then of maintainanee on the town or parish where the pauper has his legal settlement. The mode of warning out is a milder form merely of effecting this object.

The construction given . to the English statutes on this subject is, that “ no one can disturb an individual who ‘ comes into a parish to reside, but those who have authority ! to do so as officers of the parish. A complaint from one ! who is not concerned ex officio, is to be disregarded ; it may 1 be the parish are willing to keep him.” Weston Rivers vs. St. Peters, 2 Salk. 492. And the action of the justices granting an order of removal, is holden to be a judicial act, requiring the mutual concurrence of two or more justices. Oakham vs. Whittlesea, 11 Mod. 171; Rex vs. Slanwinio, 4 D. & E. 473.

The power to warn out new settlers in any town was not designed to operate as a general act of exclusion against all who might come within the bounds of any town to reside, but was placed in the hands of the selectmen to be exercised or not, in peculiar circumstances, according to their discretion. This discretion they have no right to depute to any third person to exercise for them, and the warrant must be the direct act of the selectmen, and be specific in its character.

It is perfectly competent, therefore, for the defendant in this case to contend that there is no evidence of any action of the selectmen relative to the warning out of Jonathan Wilkins from Peterborough; that they never took his case into consideration, and that the attempt to warn out was unauthorized and void. In the case, Peterborough vs. Temple, 2 N. H. R. 400, it was holden that the warrant under this statute, signed by the town clerk, by order of the selectmen, was a sufficient warrant; and it had previously been holden that a warrant not under seal was sufficient, but no case can be found sustaining general instructions to an officer to warn out individuals at his discretion.

There is another fatal objection to this warning. The statute requires, that to prevent individuals who come to reside within any town from gaining a settlement, they must be warned to leave town within the year from which they commenced their residence ; and the term of residence should be stated, either in the warrant or the officer’s return. Loudon vs. Deering, 1 N. H. R. 13.

The selectmen, in drawing their warrant, specified the term of residence of certain individuals named by them, but they had no action upon the case of Jonathan Wilkins : and when his name was endorsed upon the back of the warrant by the officer, it does not appear that he undertook to determine the time of his residence ; and it cannot be left as a mere matter of implication, to come within the time named by the selectmen as to the other paupers. The time oí the previous residence must be clearly shown in some manner ; and as this was not done in this ease, there is no evidence that the warning out was seasonably made. There is also a defective date affixed to the return of service by the officer, which must in some way be supplied before it can avail to sustain a legal warning. For these reasons, the residence of Wilkins must be regarded as in Peterborough, and agreeably to the case as drawn, the verdict for the plaintiff must be set aside, and a

Nonsuit entered.