17 Vt. 619 | Vt. | 1844
The opinion of the court was delivered by
This case is made to turn upon the validity of a warning out process, issued by they selectmen of Sandgate against Elizabeth Hills. No objection is made to the process itself, or to the service of it. The questions grew out of the record. The law, in force at the time the process issued and was served, required a record to be made of it by the town clerk in one year. It seems, that the officer made service of it on the 7th of October, 1807, and returned it into the town clerk’s office on the 9th of October, and the town clerk endorsed upon it “ Rec’d into record, Oct. 9, 1807.”
This could not be regarded as a record. If there was not originally a settled and well defined meaning of the term, there must be at this time; and it is hardly to be supposed, that there can be any difference of understanding, as to what the term imports. The object of a record is, not only to give the instrument perpetuity, but
But the copy of the process, which the defendant produces, has the certificate of the town clerk, that the same is recorded; but neither the record, nor the certificate of the town clerk, shows when in fact the record was made, and the defendant insists that the court will infer that it was made when the paper was received for record,’as nothing appears to the contrary. This will, in some measure, depend upon whom rests the burden of proof.
It has uniformly been held, that the liability of towns to support their poor is matter “ stricti juris,’1 and not a matter of equity,— and therefore the laws affecting those liabilities have received a strict construction. In this case the town of Sandgate seeks to be released from this liability, by its own act, and to fix the liability upon Pawlet. This being the purpose and the intended effect, before the town of Sandgate can be freed from this liability, and thus fix it upon Pawlet, it should appear, affirmatively, that all, that the law requires to be done, was done. The law requires this record to be made within one year. It then becomes the duty of Sandgate to show affirmatively, and not by intendment, that this requisition of the law had been complied with.
But the plaintiff introduced a copy of the same record, with the certificate of the clerk who made the record, setting forth the time, when the record was in fact made. The defendant objected to this certificate, on the ground that the statute had not made the town clerk a certifying officer for this purpose. But we think the certificate of the town clerk was properly [admitted, to show the time. The law has made the time of recording material. If the materiality as to the time grew out of the fortuitous happening of events, or the accidental combination of circumstances, it would be different, and the time probably should be proved, like other facts. But as it is, the time when the record is made is a part of the law, that gives it any efficacy, and we think the officer who made the record, is, by the law, charged with the duty of certifying the time.
Judgment affirmed.
