Dalton v. Bethlehem

G-ilchrist, J. To lay the foundation of this action, which is brought by the town of Dalton against the town — 511 — of Bethlehem, for supplies furnished paupers alleged to be a legal charge upon the defendant town, it is made necessary by the statute that the plaintiffs give notice to the defendants, stating the sums expended by them for the relief of such poor persons, &c. N. H. Laws 305. The only purposes for which such notice is required to be given obviously demand that the persons relieved should be indicated with such precision as to leave no reasonable doubt of their identity upon the face of the notice itself. It has accordingly been determined, that although the party is» not sufficiently denoted by the words indicating her to be the daughter of one sufficiently described, yet it would have been sufficient to style her the eldest daughter, or the youngest daughter, since such an epithet would have identified the person beyond all reasonable doubt, under ordinary circumstances. Chichester v. Pembroke, 2 N. H. 530. Upon the principle of this dictum, it is plain that it is a sufficient description of the wife of Oliver P. Shattuck simply to denominate her as such, with or without the use of her Christian name. There seems, therefore, no just ground for the exception that the name of the wife is omitted in the notice. Are the other persons sufficiently described in the notice ? Cyril Andrew is there named Cyril A., and Joann is abbreviated to Joan. The additional n, in the last name, does not appear to change the sound, and we think that it would be difficult, in a plea of abatement, to show the exception as to that name to be well founded; and as to both the names, there is a strong presumption that there should not be, in addition to the seven persons described as the children of Oliver, two more, of whom one should bear a name so like to “ Cyril Andrew,” as the name of “ Cyril A.” would be, and another bearing a name so like “ Joan” as to be distinguished from it only by the reduplication of the final consonant. These exceptions to the first count must, therefore, fail; and so do — 512 — those to the second count, for similar reasons, the variances being so extremely small; and the parties in both cases being described as the children of Oliver P. Shattuck, —the description seems sufficiently certain, even if the name of Joan is different from Joanna, and the name of Cyril A. is different from that of Cyril. Kerne v. Meade, 3 Peters’ S. C. 1; Franklin v. Talmadge, 5 Johns. 84; Rosevelt v. Gardner, 2 Cow. 463. Under the third count the plaintiffs cannot recover, because there is a material variance between the count and the notice ; the former including Jane Shattuck among the family relieved, and the latter wholly omitting that name, and including that of James, who is not mentioned in the count. Had the notice and the count specified the sums expended for each pauper, an uncertainty might have.been avoided, which, in the present forms of both those papers, renders it impossible to determine for what sum the plaintiff should recover. Nothing can be recovered for Jane, for she was not named in the notice, and James, who was so named, is omitted in the writ; and having been probably inserted through mistake in the notice, the evidence does not apply to such a case. The sums specified in the notice which served as the foundation of the second count seem to be the same, but differently stated. If the notice contains the description of a larger sum than that named in the writ, the recovery must evidently be limited to the sum named in the writ. Under the provisions of the statute of January 1,1796, “ any person of the age of twenty-one years, who shall hereafter reside in any town or district within this State, and, being taxed for his poll for the term of seven years, shall pay all taxes legally assessed on his poll and estate during the said term, shall be an inhabitant in said town or district.” Under this provision it has been held that a settlement does not attach, unless the party shall have been actually taxed for his poll each year; and the reason — 513 — assigned is, that the towns may, by omitting to tax poor persons, avoid becoming afterwards chargeable with their support. Henniker v. Weare, 9 N. H. 573; Burton v. Wakefield, 4 N. H. 47. The omission of the town, during one of the seven years, to raise a highway tax in the ordinary mode, there being no suggestion that the other taxes were not regularly assessed upon the polls and estates of the inhabitants, does not take the case of Sherman Shat-tuck out of the operation of the law. He was in fact taxed seven successive years for his poll, in common with the other inhabitants, and that appears to have been sufficient, if he paid the sums assessed. It has been held that after the lapse of twenty years a presumption arises that such taxes have been paid. Hopkinton v. Springfield, 12 N. H. 328. So that, unless the defendants can show something tending to rebut that legal inference, they must be concluded by it; and the instructions given by the court to the jury were, upon this point, also correct. The case of taxes is supposed to bear an analogy to bonds, judgments, &c., which, after a lapse of twenty years, are supposed to have been paid. The evidence admitted, after notice to the town to produce the highway warrants, so far as it tended to show that the defendants themselves had suppressed them, was clearly competent. Gr. Ev., secs. 31, 37. It was also admissible under the general rule, which admits proof of the contents of instruments in general that have been lost. Gr. Ev., sec. 509. The rule embraces records as well as deeds and other papers. Another exception was taken to the evidence which was produced to prove the settlement of Sherman Shattuck, under the fourth mode pointed out by the act before cited, of January 1, 1796, and which provides that any one having real estate of the value of one hundred and fifty dollars, in the town where he dwells and has his home, and shall, for the term of four years, pay all taxes duly assessed on — 514 — his- poll and the estate aforesaid, shall thereby gain a settlement. Under this act various decisions have been made by the Superior Court, as to the kind of interest the party must have in order to gain the settlement. In Charlestown v. Acworth, 1 N. H. 62, it was held that it must be an estate of freehold at least, either by seizin or disseizin. It is in evidence that he was in possession of the land, and there is no evidence that he recognized another owner, or that another person claimed it. We are certainly not required to look for further evidence that he himself was the owner, than this common presumption of title in fee simple — at least until some proof is offered to rebut that presumption. That evidence was, therefore, properly admitted, and the instructions which were given as to its effect were correct. As to the instruction that it was not necessary that the land should be taxed each year, in order that he should gain a residence by means of owning and paying taxes upon it, the case of Rochester v. Chester, 3 N. H. 349, is directly in point to sustain it. Cohabitation is evidence of a state of marriage, for the purpose of establishing all the ordinary legal incidents of that condition. A Criminal intercourse and a criminal intent are not to be presumed in such cases. Young v. Foster, 14 N. H. 114. The same presumption exists that one who is received and acknowledged in a family as a son is really such. Q-r. Ev., sec. 28. There is nothing in the statute that settles the time within which any of the taxes must be paid in order to perfect the settlement. This cannot be consummated till the taxes are actually paid; and, therefore, it was necessary, in order to entitle the pauper, Oliver P. Shattuck, to the settlement of his father, that this should be done before he arrived at the age of twenty-one years. The instructions appear to be open to no exception, except — 515 — those which regarded the notice which was the foundation of the fourth count, and it is rather unusual to find a case in which so many points occur which have been the subject of express decision in our own courts. It has been suggested that the act of January 14, 1887, provides, that after a notice has been given of the moneys expended for the maintenance of the pauper, any further sums expended within one year afterwards may be recovered without any further notice ; and that, therefore, under the fourth count, there may be recovered indemnity for all the expenses specified in the defective notice which served as the foundation for the third, since all these expenses were within a year from the 12th day of March, 1842, the day of the giving of the last good notice. This seems to render the instructions, as to the notice on which the third count was founded, of no importance, and judgment may be rendered on the verdict, notwithstanding the error. There must, therefore, be Judgment on the verdict.