Town of Townsend v. Town of Athens

Hutchinson, J. The Town of Townsend, by an order of removal, regularly removed one Jonas Deputrin, a pauper, from said Townsend to said Athens, as the place of his last legal settlement; and said town of Athens appealed from said order; and, upon an issue to the jury whether said Athens was the place of said pauper’s last legal settlement, there was no dispute but that said issue was prima facie made out on the part of said Townsend, by showing such a residence of the pauper in tire said town of Athens, as by the law then in force, gained him a settlement. The town of Athens then offered, in their defence, a certified copy of the records of said town of Athens, showing that said pauper was warned out of said town with a view to prevent his gaining a set285 dement there. This copy of llie record was objected to on the part of Townsend, and was rejected by the court, and a verdict was returned in favor of Townsend, and exception was taken to the decision of tire court, in rejecting said copy of record. The case has come up to this court,and has been argued upon said exception. The only question now to be decided is whether said copy of record was rightly ex eluded? The warning, signed by the selectmen, and directed to the constable, was perfectly correct and in conformity to the statute. The court also are satisfied with the dates and sufficiency of recording. The objection rests upon the constable’s return of his service; which the town clerk appears to have retained in its omissions and defects, even of spelling. It is as follows : “Athens, May 28, 1817. Then served the with in “preept by leaving a true and attest copy with the with Jonas “ with my return hereon thereon indorsed. “ Attest, Orín Colburn, Constable..” The court are with propriety reminded in argument, that the question that now arises is a question of strict right, with no equity on either side; and if the town of Athens have substantially complied with the requisitions of the statute in their warning-out of the pauper, then as a matter of right, they have thrown him upon Townsend. If they have failed in this, they have failed in their defence. The bad spelling, and the failure in the return to say who served, and the defect of saying of what a copy was left, the court can supply by intendment; the officer’s signing the return tells who served the precept. The having served the precept, by leaving a copy, affords an intendment that he left a copy of the precept. But when the return says that he left that copy “with the with Jonas,” and we ask what Jonas, or Jonas who ? we must answer it by conjecture. He had not before named any Jonas in his return, nor if he had, was there any allusion to it. Had the return been worded with the within Jonas ; there was literally no Jonas there; but we should, by intendment, have supplied the word “named,” so that it would have been the within named Jonas. Then the return would have been established. ’The record itself is shown with a small blot at the end of the word with, and we are urged to imagine that the blot came by the run [286] ning of the ink of the letters in. a here is no semblance of those letters there, nor would any person even suspect they over could have been there by the appearance merely. There is no need of this conjecture, for we might as well conjecture that any, , and every thing, else was as it should have been, and thus supply all the defects at once. We must not decide questions by conjecture. The officer’s return must show that he left his copy with the person with whom he ought to leave it; and, for want of this, in the .present case, the court consider the copy correctly excluded, and the judgment of the County Court is affirmed with cost. Kellogg, for Defendants. Ransom, ,for Plaintiffs.