Farmington v. Somersworth , 44 N.H. 589 ( 1860 )

Nesmith, J.

This was assumpsit for the support of Mary E. Randall and her minor child; it being alleged that said Mary was lately the wife of Daniel Randall, who had his legal settlement in Somersworth.

1. The first question arises whether the officer, Edward Barnard, who served the notice of the selectmen of Farmington, containing the supplies furnished by them to the paupers,' and for their relief and support, shall be permitted so to amend his return on said original notice as to recite thereon, according to the truth and fact, all the doings of the officer. We think the officer may do this, by filing his appropriate affidavit, showing fully that he has complied with the requisites of the law, in making his service of the original notice. He may be permitted now to amend his return accordingly. The transaction was recent, and the memory of the officer may be presumed fresh as to the service of the notice, when and how made. He can be aided by one of his copies now found with the town-clerk of Somersworth. The record proposed to be amended is not of so high a nature, and so important in its results, as many other judicial records which the courts, by a long and well established practice, have lent their authority in this way to amend. In one case a similar amendment has been made in this State. Northwood v. Barrington, 9 N. H. 869. The amendment is allowed on terms to be settled in the court below. Libbey v. Copp, 3 N. H. 46.

2. The plaintiffs object to the admission of evidence tending to show the invalidity of the marriage of Mary E.- Randall with her late deceased husband.; (1st). Because such evidence would be for eign to the issue between the parties; (2d). Because the validity of a marriage can not be disputed except by a party to it.

In controversies between towns, involving an inquiry into the settlement of paupers, it has been the practice of courts of law to inquire into the validity of the marriage of paupers, or that of their ancestors. Questions of this kind frequently form the hinge upon which the whole case turns. The propriety of such inquiry is made apparent from the language of the first section of chapter 65 of the Revised Statutes. The provisions of this section would seem to be nugatory, unless they imply or confer the power upon those interested to inquire into the validity of the acts done under them. The marriage contract imposes or transfers the burthen upon towns, according to its binding legal force, both as to the parties to the contract and their children. Hnder the power of said statute, and the practice of the courts under it, it has been the right of any town liable to be injuriously affected by the marriage of paupers, to show that any or all the requisites of the law deemed indispensable to a valid marriage are wanting. Either party to a controversy involving the settlement of paupers may show that consent was -wanting to the marriage contract, or, that it was effected by force, fraud, or by the practice of undue influence, or that one of the parties was at the time an idiot, non compos mentis, or insane, or that either of the parties had another husband or wife alive at the time of the alleged second marriage. 2 Greenl. Ev., sec. 464, and authorities in note ; Concord v. Goffstown, 2 N. H. 263; Londonderry v. Chester, 2 N. H. 230; Landaff v. Atkinson, 8 N. H. 532; True v. Ranney, 21 N. H. 52; Chester v. Plaistow, 43 N. H. 542; Middleborough v. Rochester, 12 Mass. 363.

If, therefore, the marriage of the parents here be shown to have been fraudulently procured through the interference of the agents of the plaintiff) or other interested parties, then it can not stand; and the settlement of the pauper and her child will not be in Somersworth, and the plaintiff can not prevail in this suit.