TOWN OF NORTHWOOD vs. TOWN OF DURHAM, 2 N.H. 242 (1820) - Opinion

delivered the opinion of the court.

The residence of Samuel Smith in the town of Durham for six or seven years immediately succeeding the year 1777, gained him a settlement there, which still remains, unless lost by his removal to a plaee called the Shed, and residence there for six or seven years, without being warned as the statute required, which place of residence was then supposed to be in Lee, and over which Lee, at that time, and long afterwards, exercised jurisdiction, but which was ultimately ascertained to be within the limits of Durham.

Before considering the effect of this assumption of jurisdiction, it is proper to advert to the warning out by the town of Lee. If the requisites of the statute were fully complied with in that transaction, a decision on the question of liability in consequence of such exercise of jurisdiction would become unnecessary.

It is objected, on the part of Durham, that the proceedings on the warrant are defective in this particular; that it was not returned to the clerk’s office of the court of sessions within one year after Smith came to reside in Lee.,

The statute of May 2, 1719, is as follows: “ That if any il person or persons come to sojourn or dwell in any town “ within this province, or precinct thereof, and be there re- “ ceived and entertained by the space of three months, not “ having been warned by the constable, or other person “ whom the selectmen shall appoint for that end, to leave “ the place, and the names of such persons, with the time “ of their abode there, and when such warning was given “ them, returned unto the court of quarter sessions, every “ such person shall be reputed an inhabitant of such town,” &LC. &C.

The term of three months was afterwards, by statute of January 16, 1771, extended to one year.

It is contended on the part of Northwood, that the statute does not require the warrant to be returned within any certain period. If no particular time is by this statute intended for the return of the warning and the proceedings thereon, to the court of sessions, the object of this provision in the statute would be wholly defeated. The design of this part of the statute was, to afford information to those interested of their liabilities, and this information would not be obtained, if towns were permitted, at pleasure, to keep from public view proceedings of this nature; but from a perusal of the statute, we are of opinion, that the time of return is therein expressly limited to one year from the time the pauper came to reside in the place from which he is thus warned to depart; and as that part of the return of the constable of Lee, which relates to the time of Smith’s abode there when warned, must necessarily mean that he had been in Lee nearly five months; and taking it for granted, that the return was in fact made to the clerk’s office at the time it purports from the mínete on the baek — still it must have been more than one year from the time his residence commenced in Lee to the time the warrant was returned and put on file, and this renders the whole proceeding of ho effect.

The question is then presented, whether the town of Lee, after an exercise of jurisdiction for the length of time before named, ought now to be permitted to allege, that the place where Samuel Smith resided, was in fact in the town of Durham. It seems well settled, that when a person, unauthorized, undertakes to exercise the duties of an office, and ⅛ sued by the person affected thereby, he is not permitted to allege that he was then unauthorized, and thereby excuse himself from his illegal acts.(l) And in this case it seems equally reasonable that the town of Lee, who had the advantages of this extension of jurisdiction for many years,,,,., ”. should not be excused from the liabilities incurred during that time, under the plea of mistake; and more especially as such exercise of jurisdiction might, and probably did, in this case, alter the course of conduct on the part of Durham towards this family; for it seems, from the evidence, that very soon after Smith moved from the Shed into the acknowledged limits of Durham, he was warned to depart from that town, and it is but reasonable to suppose, that the same diligence would have been used by them on Smith's first coming to the Shed, had not the conduct on the part of Lee divested them of all precaution.

(1) 3 Term. tam YS-M’In" tosh. — 4 ditto 366, Berryman 663 Cross vs. Kays.

From the best consideration we are able to give this part of the case, we are of opinion, that the settlement of Samuel Smith must be considered as in the town of Lee, unless lost by his removal from the Shed to a place within the known limits of Durham, and his subsequent residence there for several years.

The warrant, by which he was warned from Durham after his leaving the Shed, is dated June 20, 1789; and from the proceedings thereon it appears, that Smith must have moved from that place to Durham about the middle of September,

1788. He was warned the 24th day of the same June above mentioned, and on the 28th of the same month, it was returned and put on file in due form. The requirements of the statute as to the time of warning and return were therefore complied with. But it is objected, that the warrant and return are too general, the constable being required to warn “ Samuel Smith and family,” and his return being, “ that he “ had warned the within named persons.” But taking into view, that John Smith, from whom the paupers derive their settlement, was the son of Samuel, and had the settlement oi his father, it was wholly unnecessary that the warning should extend (o John; and inasmuch as the father is nant- ed in the warning and referred to in the return, eve think fie proceedings sufficient,the settlement of the paupers 5 is therefore in Lee, the verdict must consequently fee set aside, and a non-suit entered. 3 Mass. Rep. 322, Shirley vs. Watertown.