Reading v. Rockingham

The opinion of the Court was pronounced by Skinner, Ch. J. From the case as stated by the parties, it appears that Fletcher, the pauper, moved into the town of Rockingham on the. 6th February, 1815, and resided there more than one year, viz. till the 20th March, 1816. A warning to depart, issued in due form by the selectmen of Rocking-ham on the 10th September, 1815, was served by the constable of Rockingham, to whom the same was directed, on the 21st of September, 1815, as appears of record in the town clerk’s office of Rockingham, and there recorded the 22d September, 1815 ; the return endorsed upon the process is as follows, viz. “Windham, ss. Rockingham, Sept. 21, 1815. Then served the within precept, by leaving a true and attested copy of the same at the within named Paul Fletcher’s last and usual place of abode, in Rockingham, in the hands of Zuba Fletcher, with my return thereon endorsed. Attest, Ebenezer Lock, Constable.” The statute directs the mode of service in this case to be the same as is pointed out for the service of the ordinary process of summons, by the 26th section of the judiciary act, by which it is declared, “that all writs of summons shall be served on the defendant by delivering him a true and attested copy of said writ, with the officer’s return thereon ; or by leaving such copy at the house of his usual abode, with some person,of sufficient discretion then resident therein.” The only questions between the parties in this case, arise out of the return of the officer. If the return endorsed is in conformity with that which is required by the statute, the pauper has no settlement in Rocking-ham, and the town of Reading cannot maintain the action; otherwise, his settlement is established in Rockingham, and judgment must be given upon the verdict. One objection to the certifiicate or return endorsed by the officer, is, that he has omitted to say he left the copy at the house, &c. which is essential. The statute directs the copy (if not delivered to the pauper) to be left at the house of his usual abode. It cannot be supposed the legislature intended any thing more by the term house, than, the place in which the party resided. If his domicil should not [274] precisely come up' to what is usually denominated a house, no doubt service could be made in bis absence. The return, in this particular, must be considered a substantial compliance with the statute. The fact certified shows conclusively, that if the pauper had his residence in a house, the copy was there left, and the language, house of his abode, made use of by the legislature must be taken as synonymous with place of his abode. It is further objected, that it does not appear from the return that Zuba Fletcher, the person with whom the copy was left, was, in the words of the statute, a person of sufficient discretion. This presents a question of more difficulty. In the performance of this part of the duty required of the officer, the law has affixed no definite rules by which he is to be governed. The act is not purely ministerial. He has necessarily a discretion to exercise, and in deciding upon the capacity of the person to whom he commits the copy, if he does not act corruptly, he cannot be made answerable. But it is said, as the fact of the person’s being of sufficient discretion is material, and expressly required by statute, it ought to appear in the return, so that if not true, an action may be sustained for a false return. If this was the only remedy, 1 should myself have no doubt it ought to be certified in the return ; hut I can see no reason why an action may not as well be sustained against the officer for omitting to perform his duty, admitting the law does not require him to make return of his doings in this particular, as for a false return, in case he was required to make his return in the manner contended for by the plaintiff. The person being named, no additional burden is cast upon the party in making the proof in such case. The same evidence would avail him as in an action for false return. No decided opinion, however, is intended to be expressed upon this point, as upon the remaining question the Court are unanimous in the opinion the return is defective. The person with whom the copy is left at the house or place of abode of the party, must be then resident therein. The object of the service is notice to the party, and the legislature have carefully directed a course of proceeding most likely to effect this object. If the party is absent, or secretes himself, that process may not fail of service, a copy is to be left with one of the family, or some person residing at the time in his domicil. The presumption is, it will then come to his knowledge; but no such presumption can arise if thp copy is committed to a stranger who may be casually there. If this should be sanctioned, frauds would be practised and judgments obtained against parties without notice. The fact that the person with whom the copy is left resides in the house, can be learned by the officer in the.same way that he can learn the fact of the party's residing there. The place of the residence of the one, may be ascertained with the same facility and as correctly as the other, and in law they are equally important. If the officer may, where he does not deliver the copy to the party himself, omit to certify that the place was the residence of the per [275] son. with whom he left it, he may, upon the same principle, omit to certify that he left it at the place of the abode of the parly. In the latter case,'no one would hesitate to pronounce the return fatally defective. The presumption that the officer left the copy at the place of the party’s residence, would rest upon the same foundation as that the person with whom it may have been left was a resident in the house. It is said, that no evil can result from the omission, and that it is more for the interest of the party complaining, as the fact may then be put in issue between the parties; but if returned, it is conclusive. The same may be urged, and will apply with equal force, to the omission of any and every material part of the return. That which is comprised in the officer’s return beyond what the law requires, is not conclusive, and if evidence at all, is but prima facie. The decisions are, that the officer’s return is conclusive between the parties in the suit and their privies. The doctrine has as yet been carried no farther. Reading can with no more propriety be considered a party to the process of warning, than any other town in the state, and surely no action could by that town be sustained against the officer in this case, either for a false or defective return. That the inhabitants of a town may avoid the charge and burden of maintaining strangers coming to reside with them, who may become poor and unable to support themselves, the legislature have provided that such persons may within one year be warned to depart, and that a record of the proceeding be made in the office of the town clerk of such town, within a limited time, and it is necessary that all that which the law requires in such proceeding should appear of record, as well the officer’s doings upon the process, as the process itself. It may with propriety be likened to the proceedings pointed out in the statute by which one may acquire and another be divested of a title to real estate, and the same principles that have obtained as applicable to the officer’s return upon the process in that case, ought to govern in this. All persons interested are in both cases referred to the record for the evidence, and it is by that the right is determined. The. officer’s return is matter of record, and in this case the law particularly requires it to be recorded. — Complied Laws, 1st vol. p. 400. And there would be the same danger of fraud and perjury to admit parol testimony to supply any defect in this case, as in the case of final process levied on lands. Reading, from examining the records of Rockingham, find a material part of the duty of the officer is omitted in the return, whether performed or not may be beyond their power' to learn, and it would be unjust and unreasonable that they should be obliged to commence their action or remove the pauper at their peril, exposed to the consequences of what may turn out in the proof on trial. That which is essential, and which the. officer is required to, perform, must appear in his return ; important rights depend [276] upon it, it is matter of record, and it cannot be aided by parol, In the case of Davis vs. Maynard, 9 Mass. Rep. the court say, the sheriff who returns that he has served his precept, must return specifically what he has done, that the court may see whether his doings have or have not been according to law. In the cause of Parrington vs. Loring, 7 Mass. Rep. Chief Justice Parsons says, there would be great danger of frauds and perjury to admit parol testimony in such case. It is true this Court held, in the case of Pittsford vs. Brandon, Brayton, 183, that the time when the officer serving the warning made return thereof into the office of the town clerk, might be shown by parol, and the reason assigned is, that the evidence of this fact is not required by law to be matter of record. It can be no part of the officer’s return, and the statute has not required the town clerk to note the time upon the record. Judgment must be rendered on the verdict.