Ledoux v. Nashua

Peaslee, J. The declaration alleges in terms notice in accordance with the provisions of the statute, and the demurrer must be overruled. The causes assigned for the demurrer are merely denials of the fact of notice pursuant to the statute. They might well be pleaded in bar, as they present issues of fact; but they can hardly be said to raise an issue of law as to the sufficiency of the declaration. *482 The notice given and certain facts relating to the highway in question are made a part of the case. -It is not apparent what relevancy they have to the question raised by the demurrer. If it was the intent to transfer the question of the sufficiency of the notice, the case is defective. It merely recites evidentiary facts, and fails to state any finding upon the ultimate issue of fact. “ Whether upon the information contained in the statement the place could be found by the exercise of reasonable diligence is a question of fact, to be determined upon all the evidence by the court at the trial term. Its finding is not reviewed or reconsid- • ered at the law term, if there was competent evidence upon which it could be made.” Carr v. Ashland, 62 N. H. 665. This is the rule applied under a statute (P. S., e. 76, s. 7) requiring the notice to state “ the exact place where ” the accident occurred. It was said that the statement “ can seldom, if ever, be declared to be bad upon its face, for the.reason that it fails to point out the place with sufficient accuracy.” lb. 668. This is the rule under a statute which calls for exact information. It must be as broad under a law requiring only notice “ setting forth in general terms the location of such highway and the nature of such insufficiency.” Laws 1898, o. 59, s. 2. Even assuming that it was the intent of the presiding justice to raise a question of law not stated in the record, the ease is still defective. There must be a trial of and verdict or-finding upon the question of fact whether there was reasonable notice under the statute. Carr v. Ashland, supra; Horne v. Rochester, 62 N. H. 347; Robin v. Bartlett, 64 N. H. 426 ; Metcalf v. Weed, 66 N. H. 176; Davis v. Rumney, 67 N. H. 591; Currier v. Concord, 68 N. H. 294. Demurrer overruled. All concurred.