Inhabitants of Shutesbury v. Inhabitants of Hadley

Field, J. The plaintiff contends that Sarah Beals had a settlement in the defendant town, in consequence of a settlement acquired by her husband, John Beals, under the St. of 1793, c. 34, § 2, cl. 12; the Rev. Sts. c. 45, § 1, cl. 12; the Gen. Sts. c. 69, § 1, cl. 12; and the Sts. of 1868, e. 328, § 1, and 1871, e. 379, § 1. Worcester v. Springfield, 127 Mass. 540. Endicott v. Hopkinton, 125 Mass. 521. The judgment in the action of Athol against Shutesbury clearly did not estop Shutesbury from proving in this action against Hadley where the settlement of Sarah Beals in fact was. The town of Hadley was in no sense a party to that action, nor in privity with either of the parties. It claimed no rights in the action derived from the plaintiff, and was not vouched in by the defendant to defend the action. It was not responsible over to the town of Shutesbury, either by operation of law or by contract, for the damages obtained in that action. It prosecuted the suit, apparently, because Shutesbury, in denying the allegation of Athol that John Beals’s settlement was in Shutesbury, had also averred that it was in Hadley. Evidence that it was in Hadley would undoubtedly be competent under this denial, because if it was in Hadley it was not at the same time in Shutesbury, but the issue between Athol and Shutesbury was whether the settlement was or was not in Shutesbury, as alleged, and in the determination of that issue Hadley had no interest, and was a stranger to the action. Braintree v. Hingham, 17 Mass. 432. As evidence tending to show that, on May 24, 1836, John Beals resided in Hadley, the judge admitted a certified copy from the town clerk’s records of Deerfield, purporting to be the copy of a marriage certificate made in April 1837, certifying that the magistrate joined John Beals and Mary Ann Horton (a former wife) in marriage on May 24, 1836, and describing John Beals as of Hadley Upper Mills, which was a part of Hadley. ■ It was incumbent on the plaintiff to prove that John Beals had resided continuously in Hadley from April 1, 1836, to April 1,1846. The judge admitted the certificate as prima facie evidence that John Beals’s residence was in Hadley on May 24, 1836, and not of his residence there [246] before that date. Several witnesses testified that John Beals lived in Hadley several months before his first marriage, and the defendant admitted that he was married to Mary Ann Horton on May 24, 1836. As it was incumbent on the plaintiff to prove a residence “ for the space of ten years together,” the evidence was not immaterial. The Revised Statutes, which went into effect from and after the last day of April 1836, provided, by c. 75, § 17, that “every justice and minister shall keep a record of all marriages solemnized before him, and in the month of April, annually, shall make a return, to the clerk of the town in which he resides, of a certificate, containing the Christian and surnames, and places of residence, of all the persons who have been by him joined in marriage, within the year then last past, and also the time when solemnized,” &c., “and all marriages, so certified to the clerk, shall be forthwith recorded by him in a book to be kept for that purpose; ” and by § 25, “ the record of a marriage, made and kept as before prescribed, by a justice of the peace or minister, or by the clerk of any town, or a copy of any such record duly certified, shall be received in all courts and places, as presumptive evidence of the fact of such marriage.” This last provision was substantially reenacted in the Gen. Sts. c. 106, § 21. But the Gen. Sts. c. 21, § 6, provide that “the record of the town clerk relative to any birth, marriage, or death, shall be prima facie evidence, in legal proceedings, of the facts recorded. The certificate signed by the town clerk for the time being shall be admissible as evidence of any such record.” These two independent provisions are in the Public Statutes, Pub. Sts. c. 145, § 29; c. 32, § 11. The last of these provisions was enacted for the first time in the Gen. Sts. c. 21, relating to “ the registry and returns of births, marriages and deaths.” The colonial and provincial statutes, and also the early statutes of the Commonwealth on the subject, are cited in Kennedy v. Doyle, 10 Allen, 161. After the Revised Statutes, additional statutes were passed relating to the registry and returns of births, marriages and deaths; Sts. 1842, c. 95; 1844, c. 159; 1849, c. 202; 1850, c. 121; and in the Gen. Sts. c. 21, these provisions were incorporated with other new provisions, among which was § 6; and the facts required by law to be recorded [247] are definitely specified in the first section of that chapter. The argument is, that c. 21, §■ 6, has no application to this case, because not in existence when this record was made, and that it relates to a system of registration in part established after this marriage was celebrated, and that the section is not retrospective. But, apart from this, the record would be evidence of the facts required by law to be recorded, and these provisions of statute in this respect are but declaratory of the common law. Kennedy v. Doyle, ubi supra. Sumner v. Sebec, 3 Greenl. 223. One of the facts required by the Rev. Sts. c. 75, to be recorded, was the “ places of residence ” of the parties. The question remains whether an attested copy of the record is evidence of the “ places of residence,” as the Rev. Sts. c. 75, § 25, maltes “ a copy of any such record duly certified ” presumptive evidence of the fact of marriage, but of nothing else. In Stetson v. Gulliver, 2 Cush. 494, 498, Chief Justice Shaw, in reference to a registry copy of a deed, says, “ In this State, we think, it has always been held, that when the book of the register would be evidence, a certified copy is entitled to have the same effect; there being very little ground to apprehend any mistake from that cause, and upon consideration of the great public inconvenience, which would result from having the books of record removed from their proper custody and place of security.” This rule of evidence has, we think, been applied to all cases of records required by law to be kept by a public officer. 2 Dane Ab. 296. Commonwealth v. Chase, 6 Cush. 248. Chamberlin v. Ball, 15 Gray, 352. Commonwealth v. Norcross, 9 Mass. 492. Kennedy v. Doyle, ubi supra. Oakes v. Bill, 14 Pick. 442. Robbins v. Townsend, 20 Pick. 345. Barnard v. Crosby, 6 Allen, 327. We are inclined also to the opinion, that the Gen. Sts. c. 21, § 6, being but declaratory of the common law of this Commonwealth, was intended to be retrospective, and to apply to all records, whether past or future, of all facts required at the time of the record by law to be recorded relative to any birth, marriage or death. The ruling of the court was therefore correct. The ruling of the court upon the effect of John Beals having been an alien when he died, was correct. Worcester v. Springfield, ubi supra. ¡Exceptions overruled.