Northwood v. Barrington

9 N.H. 369 | Superior Court of New Hampshire | 1838

Upham, J.

In the case, Lee vs. Deerfield, 3 N. H. R. 290, it was settled that, in order to maintain an action for supplies furnished to a pauper, it is not necessary that the town bringing the action should show that it had paid for the supplies furnished, before notice was given to the town chargeable ; and the uniform ruling of the court since that time has been in conformity with that decision.

The exception arose from the phraseology of the statute, that the town supporting a pauper should recover of the town chargeable “ the sums expended” in such pauper’s relief. But this term, of sums expended, has been construed to mean the value of the supplies furnished, and for which the town was liable, and had incurred a debt, and not merely the sums actually paid out. This point must be regarded, therefore, as fully settled, and for reasons that are perfectly satisfactory.

In the case of Bishop vs. Cone, 3 N. H. R. 513, it was held that the record of the appointment of selectmen at a town meeting, and that they acted under the appointment, was competent evidence to submit to a jury from which they might infer the fact that the town meeting was legally holden.

So far as it was necessary to submit evidence of the legal holding of the town meeting in this case, evidence was submitted of the same character of that in Bishop vs. Cone. The only difference is, that the officer is not one of so high authority, or of so much public notoriety ; but the evidence is fully within the principle of that decision, and is believed, by the court to be competent evidence to the point for which it was offered. These exceptions are, therefore, overruled.

But the principal difficulty in this case has arisen from the service of notice by the selectmen of Northwood on the town of Barrington. The statute provides that notice shall be served upon the selectmen, or overseers of the poor of the town that may be liable for the support of the pauper, “ by the sheriff of the county, or his deputy;” and the town is entitled to have service made upon them by an officer disclosing the character and capacity under which he acts.

In this instance the officer has designated himself as a deputy of the county of Rockingham. The words “ Rock-ingham ss.,” must be considered as fixing the venue of the service. They affirm the service to have been made within the county of Rockingham, and by an officer of that county, and as such cannot be regarded as immaterial or as surplus-age. The service was thus made by an officer of Rocking-ham upon the selectmen of a town not within the limits of that county ; and the question arises, whether such service of notice is legal ? The statute, as we above remarked, provides “ that service shall be made upon the seleetme t, or overseers of the poor of the town that may be chargeable, by the sheriff of the county, or his deputy." We supposed at first it might reasonably be holden that service could be made by the sheriff of the county where the town was situated, or of any county within whose precinct the selectmen or overseers of the town might at the time happen to be ; and if so, the service might have been legally made, provided such selectmen had at the time been within the county of Rockingham. But in looking into the previous statute on this subject, passed June 27th, 1809, N. H. Laws 360, (ed. 1815,) we find the act required the service of notice to he made by the sheriff of the county in which the town lies,” or by his deputy.

In revising the statute it was abbreviated in this respect, but probably with-no design to alter its effect. We are of opinion, therefore, that service of the notice in this case could only have been made by an officer acting in the capacity of sheriff, or deputy-sheriff of the county of Strafford.

The service, then, as made in this case is bad upon the face of it. But there is a farther question arising—Can this return be amended, so as to show a legal service ?

The case finds that, on the date of the service, the officer was a deputy sheriff, duly appointed and authorized to act in both the counties of Rockingham and Strafford. On full consideration of the arguments adduced by the council, since this point was suggested by the court, we are of opinion that, if it shall be shown by affidavit of the deputy that service was made by him, as an officer of the county of Strafford, the return may be amended by him in conformity with the fact.

The principal objection which has been urged against such amendment is, that when the return is amended it will appear that a true and attested copy of such return was left with the selectmen of Barrington, which was not the fact.

But such is the effect of all amendments of an officer’s return where service is by copy ; and yet such amendments are very extensively made. The same objection would preclude the amendment of writs, because such amended writ never can have been served as the return remaining upon it purports.

This is not the principle on which either amendments of writs or returns are made. They are made either for the more full and correct statement of the action pending, of which due notice has been already given, or to show the service as it was originally, but of which a defective return, through mistake, had been entered up by the officer.

Such amendment does not malte a false return, as the time of the amendment and all the circumstances of it are matters of record, and the whole facts can always be shown. Had a return been made showing a service as of Sunday, when the actual service was otherwise, or had the return been erroneously made, showing that a copy was left with ffm. Hall, town clerk, instead of Hiram Hall, it could hardly be contended that the return might not be amended • and yet such amendment would be subject to the same objection as made in this instance.

It might be said in such case, that the selectmen would be aware of the actual service as made, but in the case before us would have no means of knowledge as to the service by an officer of Strafford county. This may be so, or may not; but the selectmen had full notice of the claim made by Northwood, and had no reason to suppose that there was an attempt at a fictitious service of a notice upon them. Suit is brought founded upon it, at which they regularly appear and answer ; and if in fact the service of notice was headed by mistake “Rockingham ss.,” when it should have been Strafford ss., where is the prejudice to the defendants in permitting the amendment ? Had the same mistake occurred in the ordinary service of a writ, would not such amendment have been admissible; and if so, why should it not be allowed in this instance ?

We see no reason why it comes not within the ordinary rule as to amendments.

Various cases might be cited of amendment of an officer’s return on writs of attachment of real estate, after copies have been left with the town clerk. Amendments are allowed also on the return of a levy on execution, after such levy has been recorded in the registry of deeds, and the execution has been returned to the clerk’s office. 6 Green. 162, Buck vs. Hardy. And the rule in this respect seems to be limited only where there has been a delay of some considerable number of years, and where the amendment consists of some material fact resting merely in the memory of the officer, which, after such a lapse of time, could not probably be disproved, if untrue. 3 N. H. R. 45, Libbey vs. Copp; 7 Green. 146, Means et al. vs. Osgood; or where the amendment will affect the rights of third persons without notice. 6 N. H. R. 459, Bowman vs. Stark; 9 Pick. 167, Emerson vs. Upton.

An officer may be allowed to amend his return of an original writ, though several years have elapsed. 11 Mass. 413, Thatcher vs. Miller; and even after his term of office has expired—1 Pick. 461, Adams vs. Robinson ; and a return of an attachment may be amended several years after the term to which the return was made. 4 Har. & McHen. 498, Hutchins vs. Brown; 3 Marshall 350, Malone vs. Samuel.

Cases of amendment to this extent seem to he well authorized, and we think include in principle the amendment proposed in this case. The amendment, therefore, will be allowed, on satisfactory evidence being furnished that it is consistent with facts.

Such amendment having been subsequently made, it was ordered that there be

Judgment for the plaintiffs.