Coventry vs. Boscawen

Assumpsit, for the support of one Betsey Bawley.

There was evidence that the pauper was the wife of John Bawley, jt\, who was born in Methuen, in Massachusetts, August 31. 1752. His father, John Bawley, came to reside in Boseawen; and on the 27th of April, 1773, the selectmen of that town issued a warrant to one of the constables, reciting that said John, with his family, had “lately come to sojourn and dwell in the town,” and requiring the constable to warn him and his wife Elizabeth, together with three children, naming them, to depart, &c. The officer returned that he had warned them, &c. but no time of their residence was stated. Said John was not named in the warrant.

It appeared from the testimony of said John Bawley, jr., that he resided in Methuen until some time after he was twenty-one years of age—that he came to Boseawen in 1774, and enlisted as a soldier, and was absent eight months— that he then returned to Boseawen, and lived there a little more than one year, when he again enlisted and was absent eighteen months, after which he returned and resided in that town nineteen years, or more. He had not gained any settlement since that time.

A verdict was taken for the plaintiffs, by consent, subject to the opinion of this court.

The pauper is the wife of John Bawley, and of course has his settlement. The expenditures were made by Coventry, and notice given, as the statute requires. The only question is respecting the settlement of John Bawley, her husband. The plaintiffs say he gained a settlement in Boscawen, derived from his father. John Bawley, the father, was a resident in Boscawen in 1773, and on the 27th of April, of that year, was warned out, with his wife, and all the children but his son John, who was absent. If this proceeding was legal, the father gained no settlement in Boscawen. It is objected that John, the son, was not named in the warrant, and consequently not warned as the other children were. He was at that time under twenty-one years of age, and not in the town; and it was clearly unnecessary to warn him. If the father gained no settlement, the son could derive none from him.

But there is another objection to this warning, which is decidedly fatal. The provincial act, of the 17th of May, 1719, provided, “That if any person or persons cometo £ sojourn or dwell in any town within this province, or pre- ‘ cinct thereof, and be there received and entertained by the ‘ space of three months, not having been warned by the 1 constable, or other person whom the selectmen shall ap- ‘ point 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, or precinct of the same, and the ‘ proper charge of the same, in case through sickness, lame- £ ness, or otherwise, they come to stand in need of relief.” Prov. Laws 140.

By the act of January 16, 1771, the three months named in the former act was extended to one year, Prov. Laws 263. The warrant or return neither of them state the time John Bawley and his family had resided in Boscawen. As the statute has made this one of the requisites to prevent a settlement, and this not being contained either in the warrant or return, this proceeding was clearly defective; and consequently, if the father was in Boscawen one year, he gained a settlement therein, and the settlement of his wife and minor children followed. 1 N. H. R. 13, Loudon vs. Deering.

But there are other facts arising from the testimony of John Bawley, the husband of the pauper, which make it clearly appear, that if he had no settlement in right of his father, he afterwards gained a settlement in his own right, in the town of Boscawen.

Sometime in 1775, after he had become of age, and was emancipated, he came into that town, and lived there, as he states, a little more than a year; and again, in the year 1778. he commenced residing there, and remained in the town nineteen years, or more. In neither instance of said residences does it appear that he was warned to depart from the town, and consequently the requisites of the law at that time to prevent a settlement were not complied with. 6 N. H. R. 302, Nottingham vs. Barrington.