Town of Barnet v. Town of Concord

Williams, J., delivered the opinion of the Court. — In this case it appears there was a motion to quash the proceedings, which was overruled ; that an issue was joined, which was tried by the court. On the trial it appeared in evidence that John S, Emerson, who was the husband of Abigail Emerson, one of the paupers removed, and father of the others, removed into the town of Concord when the act was in force in relation to warning out persons to prevent their gaining a settlement, resided there over a year, and thereby gained a settlement for himself and family in Concord. In 1813 he removed to Waterford, and there resided over a year without being warned out. By this residence he gained a settlement in Waterford, and lost his settlement in Concord, unless he was prevented by a previous warning in Waterford ; for it appears, that previous to his going to Concord, he had resided in Waterford, where a warning issued against him and his wife, which was served on him. The effect of this warning, if regular, not only prevented his gaining a settlement in Waterford by that residence, but according to. the authority of the case of Ira vs. Clarendon, Bray. 180, also prevented his gaining a settlement in the same town by any subsequent residence, while that act was in force. In 1815, Emerson and his family removed to Barnet, where they continued until June, 1827, when Eraer? son died. His widow and ¡lis children have since resided thpre, — 568 — until this order of removal was made. While they resided in Barnet, and before they had continued there a year, they were warned out of Barnet; and as this warning appears to be regular and unexceptionable, they acquired no settlement by that residence. The question in this case is, whether, the}' were settled in Concord or Waterford? and this depends wholly upon the sufficiency of the warning made by the town of Waterford. The manner of serving this warning is described by the constable in his return, and is as follows: “ By leaving a true and attested copy of the same, at the last and usual place of abode of the within named John S, Emerson, with a person of discretion, residing therein, with my return hereon thereon endorsed.” As Abigail Emerson is described in the warning, as the wife of the said John S. Emerson, if the service is good so as to prevent him from gaining a settlement, it of course prevented her ; and it was unnecessary to make any service upon her, although she was named'in the warning. But there is an objection to the service of this warning, which the Court have been called on to consider. It will be remembered that these warnings were to be served in the same manner as is providéd for the service of writs of summons. In deciding the cases which have arisen under the act in relation to warnings, courts have required a great degree of accuracy in the proceedings of the towns and their respective officers. This has resulted in a measure front necessity, and not altogether from the principle which is admitted and recognised of their being no equity between contending towns. These warnings were required by the statute to prevent persons from gaining a settlement, and for no other purpose; and both the form of the warning and the manner of service were pointed out. They were not processes upon which any after proceedings were to be had. There was no court or tribunal to which they were to be returned, who were to exercise'any judicial authority over them, or authorize any amendments, or the correction of any errors, which may have intervened. The warning out was a mere act or ceremony designed for a single purpose. Any other.ceremony, or any other mode of service of the warning might have been prescribed. But when this particular mode was prescribed, courts in judging upon it could do no otherwise, than to inquire whether it had been followed. Hence the inquiry has not been, whether the town had sufficiently — 569 — manifested their intention not to receive the persons warned, as inhabitants j whether the persons can be presumed to have had notice of the warning whether a want of regular service had been waived or cured by any after proceedings ; but only whether the statute had been followed. Hence no amendments could be made in the warning, service,or certificates of recording ; and none •has been admitted ; but the whole has been adjudicated upon as it was found on the public records of the respective towns. If a greater strictness has apparently been required in relation to these ■warnings, and the service of them, than is usually required in other processes, and the returns of services thereon, it is, because in other processes many defects, which are in reality departures from the law,are cured by appearance, or may be by amendment ; and on that account defendants have not thought it of consequence to notice them to the court, as they could be easily obviated by amendment. The defect in the return of service of this warning is one of ■that character. Had it been on a writ of summons, it would not have deserved notice, as the officer, by an amendment of his return,would probably have made it conformable to the statute. Having nothing to guide us on this subject but the statute, we must have recourse to that; and we there find that in serving writs of summons, it is required, that the officer serving the same shall deliver to the defendant a true and attested copy of the writ, with the officer’s return thereon, or leave such copy at the house of his, her, or their, usual abode, with some person of sufficient discretion resident therein : and the manner of such service shall be particularly expressed in the return made by the officer. It is a general principle in relation to all returns, that the officer must state what he has done, so- that it can be determined from his return whether the requisites of the law have been complied with. And, inasmuch as the return is prima facie evidence of the facts therein stated, it'should afford to the party affected by it an opportunity to traverse it directly, or to sue for a false return. In the statute in question great care was taken that by no collusion or fraud officers could make a return literally true, and apparently in conformity to the statute, and yet, the defendant have no notice of the suit. This was rendered necessary by the frauds which had been practiced under the former statute, by persons specially deputised at the request of the plaintiff. Under a former statute it was only required that writs should be served by leaving a copy at the last and usual place of abode of a defendant. I — 570 — recollect hearing a case investigated where a judgement was recovered against a man to a large a mount, and the first notice he had of the suit was, when the officer called to levy the execution. On examining the records the writ appeared to have been regularly served, and it was not until after much investigation that it was ascertained that copies were left at the house of the defendant, but in such a situation that it was designed he should never find them. As the officer must state in his return the manner of service, so that a defendant can directly deny the return, if it is not true, and if it is true, that it may appear the defendant had regular notice of the suit, it will follow, that if this is not done, the return must be bad. The return on this warning does not stale the name of the person with whom the copy was left. How could a defendant deny that the person with whom the copy was left was-of sufficient discretion, when the return does not inform him with, whom such copy was left? How can it be ascertained that this warning was served by leaving a copy with a person of suitable discretion ? How can that assertion contained in the return be denied, and met with proof ? And again, this return may be laterally true,though the copy was left with a child, or person of but very little discretion. The officer has undertaken to judge for himself in relation to the person with whom to leave the copy, and has left others, who may be affected by his return, no means of determining whether he judged correctly or not. The case of Reading vs. Rockingham, 2 Aik. 272, has a very strong bearing on the question under consideration. The Court there remarked, that it was a material part of the statute, that the copy should be left with a person of sufficient discretion,and which if not done, would vitiate the service ; but as the person with whom the copy was left was named, though it was not added, that he was a person of sufficient discretion, the Court were inclined to think a defendant could avail himself of any advantage he was entitled to, either by an action against the officer, for omitting to perform his duty, or by an action for a false return, and that no additional burthen was cast upon the party in making the proof. But when the person is not named, no action can be sustained fora false return. And unless we consider it the duty of the officer to name the person, for omitting which he would be liable to an action, a defendant would have no remedy against him when h.e had violated the spirit of the law in every essential particular. The case of Dodge vs. Pierce, decided in Franklin county, — 571 — ■January, 1831, recognizes the principle on which the decision of this case is made, very fully. On an examination of the statute, and on a review of the decisions which have been made thereon, we are of opinion that the service of this warning was defective, inasmuch as the constable has not slated the name of the person with whom he left the copy, and that he was a person of sufficient discretion, and has not given any means by which it can be decided whether he left the copy with a person of discretion. It is unnecessary for us to decide the other questions which have arisen in this case, as to the effect of the residence of the pauper in Barnet, while under coverture, and since, though we are inclined to the opinion, that such residence did not give her a settlement in Barnet under the statute of 1817. The paupers were unduly removed to Concord, as they acquired a settlement in Waterford subsequent to their settlement in Concord. This will entitle the defendant to a new trial if he so elects. . There was also a motion to quash the proceedings in this case, which the Court must decide upon, as the town of Concord may «till insist upon this motion. The four first exceptions on which the motion is founded are not considered of any importance, and were properly decided by the county court. The fifth and sixth are of more consequence. 'The fifth section of the statute of 1817 requires that a true and attested copy of the order of removal should be left with one ■of the overseers of'the poor of the town to which the removal "is made within thirty days after making the order. This copy should correspond with the original in every substantia] part. If there is an omission in the copy which would be fatal, if it were in the original proceeding, the statute has not been complied with. 'There was such an omission in the copy which was left with the -overseers of the poor of Concord, and they might have considered, that, if the original order was similar to the copy, it was defective, and on that account'have neglected to take an appeal. They may here insist on this defect in the copy on this motion to quash. The proceedings were also irregular in removing the paupers before the day given them by the court to remove themselves. The paupers might have gone out of the state, and have been no further chargeable to any town. The constable had no right to remove them before the day set for them to depart. These proceedings were irregular in these particulars, and ought to have been quashed. The judgement of this Court, — 572 — «therefore', will be, that the judgement of the county court is reversed ; that the proceedings be quashed, and the town of Cort- ' cord recover their damages and cost, unless they elect to take a new trial upon the merits, waiving any advantage on account of these irregularities.