Tidd v. Smith

| Superior Court of New Hampshire | Feb 15, 1825

By the court.

The statute, entitled “ An act for taxing the “ lands and buildings of non-residents,”' sec. 4, provides, that before lands are sold for taxes, an advertisement shall be posted up “ in some publick place in the town or place “ where the lands lie, three weeks successively, commene- “ ing eight weeks prior to the sale.” In this case it appeared, that after the advertisement was posted up, Bean’s house remained a tavern only about a week ; after which it was occupied by a shoe maker, who carried on his business in the room where the advertisement remained, and to which many people resorted ; and it is contended, that it ought to have been left to the jury to say whether the place where the advertisement remained was a publick place or not 1

It is very-clear, that the question, whether a particular place is to be considered as a publick place, within the meaning of the statute, is a question partly of fact, and partly of law. The nature and situation of the place, and the uses to which it is applied, are matters of fact to be settled by a jury. But when these are settled, whether the place is to he considered a publick place, within the intent of the statute, is purely a question of law. In the present case there was no controversy as to the facts , the only question was, whether a shoe-maker’s shop could be considered as a publick place ; and this, in our opinion, was a question of law not to be submitted to a jury.

But it is contended, that Bean’s shop was to be considered as a publick place within the meaning of the statute ; and if this objection be well founded, the jury were misdirected, and there must be a new trial.

It is a matter of no inconsiderable importance, that it should be settled, what is to be understood by the words “ publick place” in our statutes ; for they are words of frequent occurrence there.

Meetings of the proprietors of common lands are to be called by posting up the warrant “ in some publick place with- “ in such town, parish, or place where the estate lies, if “ within any settled town.” 1 N. H. Laws 231.

Town meetings are warned by posting up a copy of the warrant “ at the meeting house, or some publick place in “ said town.” 1 N. H. Laws 244.

Lists of the voters are to be posted up <£ in some publick “ place or places,” previous to town meetings for the choice of state and county officers. 1 N. H. Laws 251.

The inhabitants of towns are to be notified to give inventories of their taxable property, by advertisements posted up “ at some publick place or places.” 1 N. H. Laws 259.

Notice of an intended sale of goods, taken as a distress for taxes, must be posted up “in two publick places.” 1 N. H. Laws 272.

The place, where lands are in certain cases to be sold for taxes, must be “ some publick one” in the town where the land lies. 1 N. H. Laws 273.

Goods taken upon execution are to be advertised for sale, by notification., posted up “ at two of the most publick “ places” in the town where the sale is to be. , 1 N. H. Laws 183.

When shares in incorporated companies and pews in meeting houses are to be sold upon execution, notifications of the time and place of sale are to be posted up ££ in one or “ more publick places” in the town where such sale is tobe made. 1 N. H. Laws 185.

When any person finds any goods, or takes up any stray beast, it is made his duty by statute to post up a notification “ in some publick place in said town or place,” 1 •A". II. Laws 408.

When cattle are impounded, and the owner is unknown, the person impounding is to post up notifications “ at some £! publick place in the town where the said creatures are ££ impounded, and in two adjoining towns.” 1 N. H. Laws 413.

When the right in equity to redeem real estate mortgaged is to be sold upon execution, notifications of the time and place of sale must be posted up “ in two or more publick “ places” in the town where the estate is. Statute of 1822, cap 59.

In all these instances the words, ££ publick place,” were intended, we imagine, to express the same thing; and théy must have been very generally understood by every body in the same sense ; for we do not recollect that any question has ever before this time been raised upon the subject. It is altogether accidental, that it is now made a question, whether the advertisement was in a publick place a sufficient time ; for had Bean's house continued an inn, there could have been no doubt. It is believed never to have been questioned that inns were publick places within the meaning of the statutes.

What other places may he deemed publick besides inns, it is unnecessary to decide in this case. Because we are all of opinion, that a shoe-maker’s shop cannot be deemed such within the meaning of the statute now under consideration.

The general understanding of the community on a question of this nature is entitled to much respect; and it is believed this understanding has viewed as publick places, houses of publick worship, inns, and perhaps in some places shops whére goods are retailed.

We are not aware, that a mechanick’s shop has ever been considered as a publick place any where.

Judgment on the verdict.