Town of Conway v. Town of Wakefield

An action is given by statute to a town, which relieves a pauper, with whose maintenance another town is chargeable ; “ Provided, that in all cases notice “ in writing, signed by a majority of said selectmen, or over-l! seers, and stating the sums expended by them for the re- “ lief of such poor person, shall be given, in the manner “ hereinafter mentioned, to the town, place, or person, “ chargeable by law with the maintenance of such poor per- “ son, within ninety days from the time the first relief shall il have been so afforded ; and such notice shall be served i( on the town, that may be chargeable, by the sheriff of the *278‘‘ county, in which such town lies, or his deputy, by leaving t£ an attested copy of such notice, -with his return thereon, “ with one at least of the selectmen, or overseers of the “ poor, and with the cierk of such town or place ; and upon “ any person, who may be chargeable, as aforesaid, by giv- “ ing him an attested copy of the notice, with his return “ thereon, or by leaving an attested copy thereof at his or “ her last and usual place of abode ; and the sheriff or depu- “ ty, serving the same, shall, within twenty days from the “ time of the service thereof, make a return of the original “ notice, with his doings therein, to the clerk of the court “ of common pleas for said county, &c. And no action shall “ be sustained against any town, or person, for any sums ex- “ pended as aforesaid, unless such notice has been given in “ the manner aforesaid.” 1 JV. //. Laws 360.

The question to be decided in this case is, whether a return of the notice, within the time prescribed by the statute, is a pre-requisite essentially necessary to the maintenance of the action ? In giving a construction to this stature, we have always adopted it as a rule, to follow the plam letter ; and it seems to us, that, taking the whole proviso together, the last clause, which declares, that no act ion shall be sustained, “ unless such notice shall be g;vcn in the man- “ ner aforesaid,” must be understood to mean a notice made in the form, served in the manner, and returned within the time, which the statute requires. We think, that the clause, respecting the return, is part of the proviso, and that a compliance with its requisitions is as essential, as a compliance With any other part of the proviso. Such being, in our opinion, the obvious meaning of the statute, títere must be

Judgment on the non-suit,