Hampstead v. Plaistow , 49 N.H. 84 ( 1869 )

Sargent, J.

In examining the exceptions in this case, it may aid us to consider what the jury have found as the facts in the case, upon which the verdict rests. They found, first, that James Burrill paid all taxes assessed against him in Plaistow for the years 1810 to 1846 inclusive ; — seven consecutive years, — and the case shows that he was there taxed in each of those years.

He would thus have gained a settlement in either of two ways,— by being taxed for his poll seven years in succession and paying all taxes assessed against him, or by owning real estate for four years in succession ancl paying all taxes assessed against him and his estate, which estate the jury find to be of the value of one hundred and fifty dollars. The jury also find that Willey had no settlement in this state at the time he married said Cynthia.

Our impression is that the testimony offered by the defendant, though very remote, was yet competent, so far as relates to the years 1832, 1833, and 1838. It had some tendency to show that a certain portion of the legal taxes for those years had not not been paid, whether they had been legally abated or not, was not material. If they had not been collected or paid, then somebody had failed to pay their taxes, and it was for the jury to settle, whether or not it was more probable than otherwise, that it was James Burrill who did not pay, upon all the evidence before them as to his ability, &c.

But supposing this testimony had been admitted, and that the jury had found upon that and other testimony, that said Burrill’s tax for these years had not been paid, that becomes entirely immaterial, since the jury find that said Burrill gained a settlement subsequent to all these years, to wit, after 1839.

We come next to consider the evidence offered and rejected of the abatement of the tax of 1842, by vote of the town in 1843. In one view this is immaterial, as without the year 1842, the residence was gained by the ownership of one hundred and fifty dollars’ worth of real estate for four consecutive years, and the payment of all taxes assessed thereon, viz., for the years 1843, 1844,1845 and 1846. So that if we should find this cvideuce competent, and that it ought to have been received, and if received, that it would have satisfied the jury, that all taxes legally assessed for the year 1842 were not paid, yet it would not disturb the verdict on one ground, but would upon ithe other ground, that he was taxed seven years in succession, and paid all taxes thus assessed.

• But let us examine this exception. This does not stand upon the .same ground as the evidence offered by the plaintiff, of the allowance by the town-of Plaistow of the account with their own overseer of the poor, Avho had paid certain sums for the support of said Burrill. That stands in the nature of an admission on the part of the town of ffbs'ir liability as proved by their own entries in their own books of account, as allowed by the town on a settlement with its agent.

But in this case, the evidence is offered by the town in its own favor, and it offers what purports to be a vote of the town, and a very extraordinary vote too, as shown by an extract from the town accounts, for the year 1843. But a vote of the town is not to be proved in that way, especially when offered and relied on by the town aswidence in its own favor. Such a vote to be valid must have been passed at a town meeting, the proceedings of which must be a matter cff record. And a record of the vote itself would be the best evidence, and the only proper evidence, of such action on the part of the town. It must also appear, in order to make such a vote binding in any case, that a proper article was inserted in the warrant for town meeting. The objection taken, that as a vote of the town, it was not properly authenticated, was well taken, and we are forced to the conclusion, that the defendant did not leave this matter in that way, if there was any better evidence that could have been offered.

But, however that may be, the exception being well taken, is a sufficient reason for the exclusion of the evidence.

But there are other reasons, covered by the general objection in this case, which seem to be valid, why this testimony was not competent. A vote of the town, however, formally passed, to abate a tax would be of no force or effect. The law has not conferred that power upon the towns, but upon the selectmen and the couxb. A party who has applied to the selectmen unsuccessfully, may apply to the court, and either for good cause shown, may abate any tax assessed by the same, or any former board of selectmen. General Statutes, ch. 53, secs. 10 & 11. All that a town could do, would be to instruct' their selectmen; but such vote would not bind either the selectmen or the court.

But that is not all. Neither the town, nor the selectmen, nor the court, has any power to abate the state and county tax, so that the town must pay them in some way. Nor can we conceive of any case in which a town would be likely to undertake to do what was claimed to have been done, unless by some mistake the selectmen of 1842 had assessed their tax upon the whole valuation, without reducing it, and thus have got their tax just twice as large as it should have been, and the collector had collected one half of it, and the town undertook the next year to abate the rest; which, instead of showing that all taxes legally assessed wore not paid, would more probably show that the whole assessment -was illegal. But whatever the facts in the case may have been, there is sufficient reason why the evidence, as it was offered, was rejected.

The ruling of the court, as to the presumption of payment was correct. In cases like this, the presumption is to be weighed, in connection with all the evidence in the case, and the presumption is to be rebutted, to be overcome by the weight of evidence on the other side.

Slight evidence would not overcome the strength of the presumption, but important and direct evidence would do so. The first class of presumptions of law as treated of by Greenleaf. 1 Greenl. Ev. sec. 15, are those which are termed conclusive, and which cannot be rebutted or overcome by any evidence. The second class of presumptions of law are termed disputable, the “ presumptiones juris” of the Roman law, which may be overcome by opposing proof. 1 Greenl. Ev. secs. 33 & 38. One of this class of presumptions is, that every man is presumed to be innocent till he is proved to be guilty, and it is expressly laid down (sec. 34) that this legal presumption of innocence is to be regarded by the jury in every case as matter of evidence, to the benefit of which the party is entitled ; and though it may require more evidence to overcome this presumption in a criminal case, than the presumption of payment in a civil cause; yet in both alike, the party is entitled to the benefit of the presumption, to be considered with all the other evidence in the case, and which is to stand, till it is overcome by the other evidence. Grantham v. Canaan, 38 N. H. 268, and cases cited.

The case finds that the defendant offered no other evidence of the payment of taxes in Hampstead, except that in relation to the tax of 1851, which had been abated. All these taxes had been assessed within twenty years before the date of the writ, and no presumption of payment arises until twenty years after the taxis assessed, so that in this case, there was no evidence or presumption of payment of any of the taxes from 1849 to 1855, inclusive, except in the year 1851, and this was the only time when Burrill could have gained any settlement in Hampstead after leaving Plaistow. The defendant failed in not proving payment of the taxes assessed in Hampstead for a sufficient length of time to gain a settlement in any of the ways prescribed by law. ”

The instructions, in regard to Willey’s marriage, we think, are erroneous. To be sure, these instructions become immaterial, since the jury have found that he had no settlement in this state. But the instructions leave out of view entirely, the question of ratification of the contract of marriage subsequent to the marriage ceremony, while the case finds, that here was evidence that bore directly upon that question.

In Farmington v. Somersworth, 44 N. H. 589, it does not appear that there was any evidence bearing upon the question of ratification, and that subject is not discussed or alluded to in the opinion; nor does it appear that it was alluded to in the arguments of counsel. So far as the case went, in its facts, the law is properly stated; but in this case, a new element is introduced, that of ratification, and the instructions should, we think, have been modified accordingly. If either party to a marriage contract had a husband or wife alive at the time, or if either party was an idiot, a non-compos, or insane person, so .as not to be capable of assenting to the contract, having no contracting mind, then the contract would be void ab initio, and any party might, perhaps, prove that fact, and avail themselves of the benefits to be derived from it, in any collateral suit or proceeding. So if the marriage were effected by fraud or duress, and was never afterwards ratified voluntarily, by a mind having the proper capacity, and also free at the time of ratification to act without fraud or force, then the same results might follow.

But the authorities are numerous and uniform and entirely conclusive upon the point, that such marriages may be good at the election of the injured party, who, on being set free from the influence of the fraud or duress, may then give a voluntary consent, — may ratify and confirm the contract, while the other party cannot avoid it by taking advantage of his own wrong; cannot interpose the objection of his own fraud or duress, that the contract and the consent was not mutual.

The injured party may, if he choose, waive the objection, and thereby render the marriage good. And it has been held that a voluntary cohabitation, after full knowledge of the fraud, and after the force, or the cause of fear is removed, will cure the defect. Bishop on Marriage and Divorce, secs. 98 to 123, and cases cited.

In this case, if the facts were all as stated, or supposed in the instructions, then, perhaps, the marriage might not have been legal as to the town of Plaistow, if the contract had not afterwards been ratified; although it would seem to be doubted, on high authority, whether the marriage is not well enough, in this class of cases, when there is no fraud or deception on the part of the female, who is alleged to be pregnant; and she is no party to or participator in the fraud or duress used by other parties.

But if the jury had found, as they probably would have done upon the evidence stated in the case, if that matter had been submitted to them, that Willey afterwards ratified the contract of marriage, by voluntarily cohabiting with the said Cynthia as his wife, then a ratification as to one, is a ratification as to all, so far as we can see, and the town of Plaistow would stand in no different position from that of anybody else. But as we have' seen, this question does not affect the verdict here.

The other instructions, as to the amount of evidence required to prove a negative, we think, were well enough. The party having to prove a negative, especially when the subject-matter is equally open and plain to both sides, usually puts in some evidence tending to prove his case, as he did here and rests. If the other side having equal knowledge of the facts, and an equal chance for proof, fails to furnish any evidence, he may safely submit the matter to the jury. But if the other party introduce evidence, — if the defendant in this case introduced evidence tending to show a settlement in this state, — that must be rebutted and overcome. The burden was on Hampstead to prove the negative ; but that being the case, it does not follow that Hampstead must summon the town clerk of every town in the state, with his records, to attend court, to show to the jury that Willey or his father had no settlement in any of these towns.

The case does not show whether William Willey, the father, was dead or alive, or what became of him, only that he lived in Danville a while and was taxed there, but gained no settlement, and that Mrs. Willey, the mother of Daniel S., always lived in Danville, and had been aided by the county. The case does not show when she was thus aided, but we infer that it was after her marriage to William Willey, and after he had either died or left the state. If so, that would be jprima facie proof, that neither she nor her husband had any settlement in this state.

For if he had, or had acquired any such settlement, his wife would of course take the same ; and if he had none, then his wife would keep her own settlement if she had any ; and it is only when neither of them has any settlement that a wife can properly be aided by the county; and when the county commissioners have examined a claim against the county and allowed it, and the court has approved it, that is in the nature of a judgment, that the person thus aided is a county pauper; or in other words, that such person has no legal settlement in the state. Such judgment may be ,erroneous, and so may any other judgment, and may be reversed on bill of exceptions, or changed upon a new trial; but until so reversed or changed it is valid, and is competent evidence of the facts necessarily found or established by such judgment.

Here was the finding of the commissioners, that neither Mrs. Willey nor her husband had any settlement in this state, which would at least make a prima facie case, which would be sufficient in the absence of other testimony.

The exception that there was no evidence of notice given by plaintiffs to defendant of supplies furnished the alleged paupers, cannot, we think, be sustained. The case finds that a notice, purporting to be signed by the officers of Hampstead, was served upon the officers of Plaistow, and the facts in the case tended to show that the town of Hampstead had proceeded upon the ground that this notice was genuine, or at least that the town had adopted it as their act and had relied upon it and ratified it, by bringing and prosecuting this suit, and these acts were competent evidence tending to show that this notice was originally genuine, or that it had been ratified by the town and adopted as a true and genuine notice. Upon this evidence the town of Hampstead would have been estopped to deny that the notice was genuine, if a verdict had been rendered against the town. And we think the court was right, in holdiug contrary to defendant’s exception, that there was some evidence of notice and sufficient to warrant, the court in submitting that fact to the jury, and a general verdict for the plaintiff is a finding that the jury judged the evidence sufficient, and we think they judged rightly.

Judgment on the verdict.