Milford v. Wilton

delivered the opinion of the court.

The only question raised in this case is, whether the pauper for whose support this action is brought, was duly warned out of the town of Wilton ; if such was the case, it is conceded that the settlement of the pauper is in Milford.

The warning was under the act of Jan. 16, 1771, and that act provides that the warning shall be returned to the Court of Quarter Sessions within one year from the time such persons came to reside in town. This construction of the act has been sustained by repeated decisions. Exeter vs. Stratham, 1 N. H. R. 102; Northwood vs. Durham, 2 N. H. R. 242.

But what shall constitute the proper evidence of such return ? The best evidence is, undoubtedly, a memorandum made by the clerk of the court, of the time when the return was received ; and where such memorandum is made it is conclusive evidence of such time. It has been contended by the plaintiff in this case, that this is the sote evidence— that the time of the return should be made a matter of record — and where this is not done, or where the memorandum upon its face is erroneous, as is the case in this instance, that the defect is fatal, and cannot be supplied by other testimony.

But there is nothing in the statute requiring this to be the sole evidence, or even making it the duty of the clerk to cause such memorandum to be made. Where there is no such provision, there would be likely to be a different practice in different counties in this respect: and it is found that there is no precise uniformity in any one county. Sometimes a memorandum has been made of the year, sometimes of the month, and sometimes of the day of the month, when the warning was received. At other times no minute *423has been made, but the papers have been found regularly on file of the proper year.

The statute requires that the time when the pauper commenced his residence within the town should be stated either in the warning or the return ; and according to the construction given to the act the officer is bound, in all cases where such warning was seasonably delivered to him, to make return of such warning within a year from the time when such residence commenced.

Where service of the warning was duly made, the most natural presumption would be that it would be duly returned, and that the officer would thus discharge properly and faithfully his official duty. Where, in addition to this presumption, we find the warning in the clerk’s office in a regular file, purporting to contain papers returned within the period required by the statete, this should be regarded, we think, as prima facie evidence of a seasonable return, until the contrary appears.

Where there is any thing in the memorandum of the clerk, or such departure from the established practice of a clerk as to render the time of the return doubtful, or rebut the prima facie evidence of the return having been seasonably made by the officer, or where there is any other testimony to rebut such presumption, it is evidence to be weighed by the jury.

This case was tried upon these principles. The warning was found duly upon file. The memorandum of the clerk as to the receipt of the warning was not conclusive in any manner, inasmuch as through some clerical error it bore evidence of a receipt of the warning prior to its service, which could not be, and the memorandum might therefore be regarded as void. But the warning being found duly served and properly upon file, it was prima facie evidence of a seasonable return.

To rebut this presumption, the plaintiff offered the imperfect memorandum of the clerk, and the different modes of *424signature adopted by the officer at different times, to show that the service and return were made at a later period than the time required by the statute. On the other hand, the defendant offered the testimony of the officer, to show a due return made to the clerk’s office within the year. On the whole testimony the jury have found a service and return in compliance with the statute, and we think the testimony was competent and properly submitted. There must, therefore, be

Judgment on the verdict for the defendant.