Overseers of the Poor of the Town of Hartland v. Overseers of the Poor of the Town of Williamstown

[251] The opinion of the Court was pronounced by Skinner, Chief J. If the order of removal of 1817, was void, the paupers’ residence is in Williamstown, and they were duly removed by the proceeding upon which this appeal was taken; but if not void, the testimony was improperly rejected by the court, and the verdict ought to have been that the paupers were unduly removed. The omission in the justice’s record, in relation to the examination of Daniel Badger, the pauper, cannot render the proceedings void; and whether" it would be cause for quashing the proceeding, on appeal before the county court, is at least questionable. There are cases in which no examination can be had. In England, an order of removal, unappealed from, has the same effect as the affirmance of the order by the court appealed to. It is conclusive as to all persons. —2 Salk. 481, 488, 489, 524, 527. Such order, it is presumed, is not conclusive without notice to the parish to which the pauper is ordered to remove. Upon common principles, the right of no one is concluded without notice. The English statute does not require notice, but we are persuaded, from an examination of the forms of proceeding, that the uniform practice is to give notice; and if that practice had, obtained here, under our former statute, the same rules would undoubtedly have been adopted. Under our statute no provision was made for giving notice, except in cases of removal by warrant, and no practice of giving notice otherwise has prevailed — a majority of the Court, therefore, incline to the opinion, that notice in any other way would not be good. It is objected to this proceeding under the order of 1817, that the order and removal are void, for that the name of Daniel Badger only is contained therein, who, from the return of the officer, does not appear to have been removed, and therefore no legal notice was given to the town of Hartland. On an appeal to this Court, in cases like the present, that is, where the order and warrant are to remove “A. B. and fi only, the orders have been quashed, and these decision recent, are to be regarded as correct. Although our not like the English statute in this particular, yet this rfcnstruc don will prevent many evils and inconveniences that rienced under the former practice. Indeed the constable has no certain means of kno is he a suitable officer to decide, what persons of the farm, to be removed. This is the proper inquiry for the justices^ they ought to decide and name all the persons to be removed, in the order and warrant. But the letter of the statute in this case having been complied with, and the form here pursued, sanctioned by a long course of practice, to hold the proceeding ■void, would be unwarrantable. Such decision would tend to disturb rights, long since supposed to be settled throughout the state, and in this case no doubt the inhabitants of Hartland so considered, from the long period they have submitted to the or252 ^er’ ar|d taken upon themselves the burden of supporting the paupers. The consequences of a decision, by which an order is quashed upon appeal, are very different. The effect is upon the particu{ar casé, or at most upon such cases as are pending at the time. Charles Marsh, for the appellants. J. H. Hubbard and H. Everett, for the appellees. On the question whether, from the record, it appeared that the town of Hartland had notice, we are compelled to understand and believe, that some part of Daniel Badger’s family were removed by the officer to whom the warrant was directed. His return shows that he removed the family, and all the efiects of Daniel Badger to Hartland, and left with the overseers a copy of the precept. Admitting that the return does not show that Daniel Badger was removed as part of the family, yet it does show that the warrant was executed by a removal of the family, and notice given, by leaving a copy of the warrant which contains the substance of the complaint, the proceeding thereon and order of removal. It cannot be questioned, that an appeal might have heen regularly taken thereon by the town of Hartland, and this we believe to have been their only remedy. In England, where the practice is to give notice in all cases, such order, unappealed from, is conclusive; and in this state, with notice by removal, on warrant, it must be so considered. The testimony offered on the part of the appellants, was, therefore, improperly rejected, and the verdictmust be set aside.