Adams v. Oaks

Platt, J. delivered the opinion of the Court. The 17th section of the " act for the relief and settlement of the poor,” (1 N. R. L. 279. 285.) gives an appeal to [284] “ every person, who shall think himself aggrieved by any judgment or order, of any Justice or Justices,” &c. But 1 incline to the opinion, that the appellant was concluded from his appeal, hy omitting to appear and defend himself before the Justices who issued the warrant. In making an adjudication, that the pauper was settled in a particular town, with a view to an order of removal merely, no notice is required to be given; it is a proceeding esc parte. The Court of Sessions is the first forum in which the matter can be litigated by the Overseers of the adverse town. But where the proceeding is with a view to a distress-warrant, for the sustenance of the pauper, the reason of the case is varied. In directing the distress-warrant to issue in such case against the Overseer of the town properly chargeable, the statute is silent as to previous notice by summons; (1 N. R. L. 284. s. 16.) but on common law principles, such notice is held to be necessary, before the Overseer can be personally charged by process in the nature of an execution. If the appellant had appeared on the summons, which was to show cause why a warrant of distress should not issue against him, he would not have been confined, in making his defence, to the mere fact, that he was not an Overseer of the Poor, or that he had already paid the sum required. He might have defended himself, on the ground, that the .pauper had no legal settlement in the town of Dickinson, of which he was Overseer. When the law allows him the privilege of being summoned in such case, it imposes on him a corresponding duty; which is, that if he has any ground of defence, he shall appear and prove it, in the primary Court, having cognizance of the matter. Suppose the defence had been, that no expense had been incurred on account of the pauper, or that he (the Overseer) had already paid such expense ? Can it be tolerated, that he itiay neglect to appear, and after the warrant of distress has been levied, and the money paid over, then litigate the whole matter on appeal ? It would pervert the right of appeal, which implies an actual previous litigation in the tribunal appealed from. To allow him to pass by the inferior tribunal, unnoticed, would. be to convert the appellate into an original jurisdiction. A judgment by default, for want of appearance, is, for this [285] purpose, equivalent to a judgment on confession. This doctrine is well settled in the higher Courts, without any statute provision for that purpose ; and I perceive no reason, why it should not be applied to all judicial proceedings, where an appeal is allowed. If I am correct in this point, it is decisive of the case, in favour of the plaintiffs in error. But on the merits, as disclosed in the Sessions, I think the judgment of the Court below was erroneous. The ,proof shows, that the father of the pauper gained a settlement, by paying taxes for two years, in Dickinson, after the division of that town; and, under the circumstances of the case, the pauper had a derivative settlement, identified with that of his father; and the son had acquired no other. The contract, whereby the father attempted to release his infant son from all parental charge and control, was absurd, and can have no effect upon the question before us. The law determines the relation between a father and his infant children, which it is not in their power to change. The conclusion is, that the judgment of the Court ofGe~neral Sessions ought to be reversed. Judgment of the Sessions reversed.