New-Boston v. Dunbarton

12 N.H. 409 | Superior Court of New Hampshire | 1841

Upham, J.

The settlement of the pauper in this case is conceded to be in the town of Dunbarton, unless it has been changed by her marriage with Moses Towne. Towne’s settlement, if he has any, is in Allenstown, derived through his maternal grandfather, McCoy ; and McCoy’s settlement depends on the question whether Allenstown was an incorporated town or not, at the time of his residence there, which was in the year 1795, and for some years previous.

No record evidence of an act of incorporation of Allens-town prior to 1795 was produced on the trial; but various acts, almost from the first settlement of the place, which are usually done by towns, were offered in evidence to the jury, for them to find from them that Allenstown had been incorporated. It was in evidence that Allenstown had been classed with some other town or place for the choice of a representative, prior to 1795, and that the inhabitants had, for several years previous to that time, organized as a town, raised taxes for the support of the poor and the repairs of highways, and had done all the acts usually done by towns.

None of the acts offered in evidence necessarily shew an act of incorporation as a town. No place can, by its own acts only, place itself in such a position as to entitle it to the rights and privileges, or subject itself to the liabilities of towns. An act of incorporation cannot exist, except as derived from the government; and no evidence has a tendency to show an act of incorporation, unless some act or acts of the government be shown recognizing such place as a town, or the right of such place to act in that capacity. Evidence of that character might be submitted to a jury, on which they might find an act of incorporation, notwithstanding no record was produced; but the evidence that Allenstown had been classed for the choice of a representative is not of that character, as unincorporated places are usually classed for that purpose. It is not necessary, however, to enter more at large into this part of the ease, at this time, as the verdict must be set aside on account of a defect in the notice.

The notice served upon the town of Dunbarton is to recover for the support of Nancy Towne and her four minor children. The names of the children should have been given, or otherwise particularly described, so that it might appear which of her minor children had been relieved. It appears from the case that she had other minor children. The suggestion that the term minor may apply to the four younger children, is true ; but it is by no means clear from the notice that, such was its intent, and it is not such a definite notice of the persons relieved as is required by the statute. Laws N. H. 305; N. H. Rep. 530, Chichester vs. Pembroke. The amount expended for the support of the mother is a distinct sum, and the notice is sufficient as regards her. The plaintiffs may recover for the amount of her support, unless the defendants, upon a new trial, should be able to make out a better case.

New trial granted.