The objection to the sufficiency of the statement was seasonably made. The plaintiff need not set out the statement in his declaration, or allege that he has filed one. It forms no part of the cause of action. 1 Ch. Pl. 222-225. The omission to file it is matter of defence, and may be taken advantage of under the general issue (1 Ch. Pl. 491), or may be pleaded in bar of the action. It was so pleaded in Leonard v. Bath, 61 N.H. 67.
Whether the exact place where it is claimed the damage was received is sufficiently designated in the notice, is a preliminary question of law and fact to be determined by the court. Like kindred questions, it may, however, be submitted with proper instructions to the jury. Bartlett v. Hoyt, 33 N.H. 151; Field v. Tenney, 47 N.H. 513, 521; Hall v. Brown,58 N.H. 94. It is not necessary to its decision that the court should find either that any damage was received, or that it was received at the place specified. If the notice describes an exact place within the meaning of the statute, the plaintiff cannot be nonsuited, or subjected to a verdict against him upon a finding by the court either that no damage was received, or that it was received at a different place. The questions whether the plaintiff was injured, and, if he was, whether he was injured at the place named in the statement, are for the jury. To their verdict thereon the plaintiff is entitled as of right.
A statement can seldom, if ever, be declared bad upon its face, for the reason that it fails to point out the place with sufficient accuracy. A description, apparently of the most general and indefinite character, when applied to the ground, may locate the place with the utmost exactness; as, if it is said to be upon a named highway in the town, or in a certain school or highway district of the town, and it is found that the highway falls within the town or district at only, a single point. On the other hand, a statement of the greatest apparent certainty may, in fact, designate no place, or any one of several different places; as, if it is declared to be at or opposite a certain monument, and it is shown that there is no such monument, or that there are many similar monuments situated widely apart.
The object of the statute in requiring a statement of the place where damage is received to be filed with the town-clerk within ten days is, to enable the town authorities to examine the place *Page 669 shortly after the alleged injury, and before the condition of the highway is materially altered by the action of the elements or otherwise, to the end that they may judge for themselves whether the plaintiff has a just cause of action, and take measures to protect the town from unnecessary and useless costs or from unfounded claims. Leonard v. Bath, 61 N.H. 67. If the statement so designates the place that the officers of the town, being men of common understanding and intelligence, can, by the exercise of reasonable diligence and without other information from the plaintiff, find the exact place where it is claimed the damage was received, it is in this respect sufficient because it fully answers the purpose of the statute. Whether upon the information contained in the statement the place could be found by the exercise of reasonable diligence is a question of fact, to be determined upon the evidence by the court at the trial term. Its finding is not reviewed or reconsidered at the law term, if there was competent evidence upon which it could be made. Lefavor v. Smith, 58 N.H. 125; Fox v. Tuftonborough, 58 N.H. 19; Whitcher v. Dexter, 61 N.H. 91.
The exact place where the damage is received may comprise a distance upon the highway of many rods. The damage may be received in two or more places. A statement is not necessarily insufficient because it declares that the damage was received at a point named and thence for a certain distance to another point, or that it was received at two or more points, or because it describes one place and two or more places are found to answer the description. It may be that in all these cases the place is designated with such certainty that no person of common intelligence could, with reasonable effort, fail to identify it. The statute does not require that the defects in the highway, by which it is claimed that the injury was caused, should be specified. Cases may happen in which a statement in strict compliance with the letter of the statute would fail to give the information which the legislature intended to require. A highway may be defective by reason of an object in or near it calculated to frighten horses. Chamberlain v. Enfield,43 N.H. 356; Darling v. Westmoreland, 52 N.H. 401. The traveller, in consequence of his horse's taking fright, may be thrown from his carriage, and, in a literal sense, receive damage at a place far distant from the object, and where the highway is in perfect condition: Merrill v. Claremont, 58 N.H. 468. A statement by the claimant that he received damage at the last named place, though literally true and a formal compliance with the statute, might convey no useful information to the town authorities; on the contrary, it might tend to mislead and deceive them. In various other possible cases the damage may be received at a point in or outside of the highway more or less distant from the defect by which the injury is caused. Whether in such instances one only of the places, and which one, or whether both places, should be so described in the statement that by reasonable *Page 670 diligence they may be found, are questions which need not now be determined.
The referee has not stated whether upon the information contained in the statement the defendants' officers could by reasonable diligence have found the place where the plaintiff claims that he received damage, but has merely reported facts which are evidence competent to be considered upon the question. The report may be recommitted to the referee to find the fact, or it may be determined by the court at the trial term.
Case discharged.
BLODGETT, J., did not sit: the others concurred.