38 N.H. 115 | N.H. | 1859
By the act of July 3,1841, (Laws of 1841, ch. 605) it was expressly provided, that thereafterwards no person should be considered to be an inhabitant of, or to have
The effect of this enactment was to abolish all settlements gained under laws passed prior to January 1, 1796, and the consequences of those settlements, so far as concerned the liability of towns for the support of paupers. Gilford’s Petition, 20 N. H. 278; Gilford v. Gilmanton, 20 N. H. 456; Barnstead v. Alton, 32 N. H. 245; Andover v. Merrimack County, 37 N. H. 437.
We have carefully analyzed the facts proved in the case before us, and compared them with the provisions of the statutes relating to the settlement of paupers, in force since December 31, 1795, without being able to discover any thing in the evidence which fixes the settlement of either of the alleged paupers in the town of Barnstead.
Upon her marriage to Theodore Willey, Sally Willey undoubtedly acquired the settlement of her husband, if he had one; but this was in 1793, and therefore could not affect the case, even if it were proved, as it is not, that Theodore Willey'at that time had his settlement in Barn-stead. So, too, the residence of Theodore and Sally Willey in Barnstead, from 1793 to 1796, without being shown to have been warned out, although it may have gained for them a settlement there under the act of February 15, 1791, (N. H. Laws, ed. 1805, p. 301) was entirely inopera
It has been ingeniously urged by the plaintiffs’ counsel, that after the lapse of fifty years there arises a legal presumption, from the fact of Theodore Willey’s residence in that town, that he was taxed in Barnstead seven years in succession, for his poll at least, so as to gain a settlement there, by taxation, between 1796 and 1807 ; but we do not understand the rule of law to be so. Selectmen have a right to omit to tax a person for his poll, in order to avoid his gaining a settlement. Besides, the assessment of taxes is a matter of record, and unless the records are shown to be lost, they are the best and only evidence of taxation. If lost, other evidence might undoubtedly be introduced to supply the deficiency; but the burden of proving taxation is always upon the party affirming it, whatever the lapse of time.
We are, therefore, entirely clear that there was no evidence offered in the court below, tending to show conclusively the legal settlement of any one of the alleged paupers in the defendant town; and upon the proof made the defendants would undoubtedly have been entitled to a judgment as of nonsuit, had they moved for it.
The precise question involved in this inquiry was considered and determined by this court in Corey v. Bath, 35 N. H. 531. It was there held, in accordance with a variety of authorities adduced, that where the defendant confesses generally a certain amount of damages, he admits conclusively every fact which the plaintiffs would be obliged to prove to recover that sum, under the circumstances set forth in the declaration.
Applying the doctrine of Corey v. Bath to the confession before us, the defendants must be holden thereby to have conclusively admitted whatever was necessary to be proved to enable the plaintiffs to recover the last item of the claim specified in the declaration; which was, that Enoch II. Wil-' ley, Hiram Willey and James Willey, at the date of the medical attendance rendered them by Dr. Tenney, were paupers in Pittsfield, standing in need of the relief furnished them; had no relations of sufficient ability, liable by law to support them ; that the plaintiffs had expended in their support the nine dollars charged, of which the defendants had due and legal notice, and that the persons to whom this relief was furnished had, at the time, their legal settlement in the defendant town. By the confession, therefore, the plaintiffs were entitled to judgment for the amount confessed.
The second item of the plaintiffs’ claim was for the board of James Willey, and his wife, Lucy Willey, at about the time of the medical attendance rendered by Dr. Tenney to James Willey. The case finds that Lucy Willey married
The case finds that on the trial the plaintiffs proved every thing necessary to enable them to sustain their action as to the first and second items of their account, except the settlement of the alleged paupers. Can, then, the defendants, by their confession of the last item of the account, involving as it does an admission that, so far as that item is concerned, James Willey had his legal settlement in Barnstead, be holden to have thereby made the same admission as to the settlement of said James and his wife, in respect to the second item ? In other words, can an admission, expressed or implied in the confession of judgment for the amount claimed in one item of an account, be regarded as made in respect to any other item of the same account to which the general issue is pleaded ?
We think clearly not; on the common and familiar principle, that where several pleadings are filed, they are to be tried precisely as if each was pleaded alone, and the admissions expressed or implied in one plea cannot be used as evidence against the party upon other issues. The confession of the amount claimed as due in the third item of the plaintiffs’ claim, that claim being in its nature divisible, is to be regarded as in the character of a special plea to that portion of the account as to all the rest of which the general issue was pleaded. Nnd it is well settled, that where there are several distinct pleas, the plaintiff’ cannot use one plea, or any admission expressed or implied in it, as evidence of a fact which is denied in another plea. So, where there are several issues joined, an admission involved in one does not operate as an admission in relation to any other. Buzzell v. Snell, 25 N. H. (5 Fost.) 480;
In Kirk v. Nowell, 1 D. & E. 118, Buller, J., in delivering the opinion of the court, said : “ There was never such an idea before, as the counsel against the rule have suggested, that one plea might be supported by what was contained in another. Each plea must stand or fall by itself; they are as unconnected as if they were on separate records.”
Aside from the great weight and uniformity of authority on this question, the manifest injustice of holding the defendants in the present case to have admitted their liability for the second item of the plaintiffs’ claim, because they preferred to confess the third item — a very trifling portion of which only may have been for the physician’s attendance on James Willey — is quite apparent. The whole third item was only nine dollars, for attendance upon three persons. Supposing one third of the whole amount to have been for attendance upon James Willey, the defendants might well prefer to pay that sum rather than to incur the expense of contesting the question of his settlement, even though fully satisfied the plaintiffs must fail to establish it in the defendant town. To hold that, by signifying their unwillingness to litigate so small a matter, they admitted, for any other purpose and with any other effect, than so far as the trifling amount of the sum confessed was concerned, that James Willey had a legal settlement in Barnstead, would convert an act of commendable prudence and discretion into one of gross folly and imprudence.
Exceptions sustained.
