Overseers of the Poor of Waterford v. Overseers of the Poor of Brookfield

The opinion of the Court was delivered by Hutchinson, J. The motion to quash in this case assigns several reasons, supposing them apparent upon the record. The three first of these may be considered together. They are that the magistrates did not have the pauper before them and examine him, but adjudged him non compos mentis without examining him. On inspection of the record it appears that the pauper was not examined before the magistrates, and they assign as a reason for it that he was non compos mentis. If this reason existed in point of fact it was valid, and the record for this purpose must all be taken together. It is referred to as the evidence upon which the motion is predicated. But itisurged that the magistrates could not have known this judicially, without an examination. This is true in the sense that the record is not conclusive of the fact. They might have seen the pauper daily, and known him to be wholly incapable of giving testimony — and their assigning this reason is prima facie good. It is good when the exception is taken in the manner now presented. This motion is in nature of a special demurrer, relying upon defects apparent upon the record. In that view the record is not defective in this point. If the overseers of Brookfield had felt disposed to •contest this fact, and plead, in a traversable form, that the proceedings ought to be quashed or abated because the pauper was of a ■sound mind, and was not non compos mentis, as the proceedings suppose; this might be replied, and an issue formed upon the factof his soundness of mind ; and such an issue must be tried without prejudice from the recital by the magistrates. Pleadings were so formed in a case in Bennington county'. So if they' would [206] pl'éad thattbe pauper was not chargeable, or not likely to beco'hig chargeable, to Waterford, this might in like manner be pleaded in a traversable form. So of the matters that compose the fourth and fifth exceptions in the motion ; these are no defects in the proceedings, for they need not appear of record. The statute of 1817 requires a true and attested copy .of the order tobe left with the town against which the order is made within thirty days. It does not say by whom it shall be attested ; but the magistrates are the only persons who can properly attest copies of their own order. They to be sure, in this case, have, in their warrant, directed the constable to deliver a true and attested copy of said order; and he returns that he has done so, saying nothing by whom attested. But the whole record might as well be silent upon the subject': for the copy may as well be sent by any other person as the constable. And when the question is raised by any proper plea, whether such copy has been delivered, the fact may be proved by the person delivering it. Where the removal takes place, and copies are left under the old statute within thirty days from the making of the order, it seems Useless for the statute of 1817 to require another copy to be delivered. It Would have been well if the last statute had made its requisition only in cases where the removal was not effected within the thirty days. Were the question entirely new,I think we should now so construe that statute ; though its requisitions seem peremptory. The question was raised at St. Albans, and the majority of the Court felt bound by the decisions several times mentioned by Chief Justice Skinner, as having been made before we were associated with him. Whatever, therefore, might be the result, if matters alluded to in this motion had been put in issue by proper issuable pleas, they cannot avail as mere defects in the record of the proceedings. The remaining question arises upon the sufficiency of the record of the warning -out of the pauper. The objection to the time of the recording does not seem supported by the record. The warning bears date December 21st, 1809. The officer’s return bears date January 2d, 1810 — At the bottom of all this the town clerk adds to his record,'" Waterford, Jan’y 4th, 1810. The above is a true record. Attest, S. H. town clerk.” The attestation of the Copy follows in due form. That the above is a true record means that it is a true record of that of which it purports to be a record— and it clearly purports to be a record of the warning and the ofli-cer’s return of his service of the same. The case between Chelsea and Washington, cited to this point, and supported by the copy of the exceptions, may have been decided upon another [207] ground.* and the copies produced do not show the reasons of the decision. We discover nothing why the recording was not regular, and in time, in that case. But the officer’s return has a defect which might have given occasion for a decision against the warning. The officer was commanded to warn John Norris, Hannah Norris, wife of John Norris, and their whole family, to depart the town. The officer returned that he served it by leaving a true and attested copy, &c. in the hands of the said John Norris’ wife, without saying whether she was a person of sufficient discretion, or whether she was resident at the house of the said John Norris. This, as a warning out of John Norris, was defective according to several decisions of this Court for years past. The warning, in the case before us, being sufficiently recorded, we proceed to examine the warning itself, and the officer’s return. The warning is signed by three selectmen, and directs the constable to warn Obadiah Rice, Hannah Rice, his wife, and Obadiah Rice, Jun. to depart, &c. The constable has returned thereon that he served this warning by leaving a true and attested copy with the within named persons, with his return thereon endorsed. It is objected, that he says he left a copy, without saying of what. It is true, he does not say it expressly, but the intendment is so strong it cannot be misunderstood. Served the warning, by leaving' a copy, cannot be supposed a copy of any thing except the warning. We got over an objection exactly similar in Windham county, a year ago. But, with whom did he leave this copy ? It is answered that he left one with each of the persons named. This is not contained in the return, either by express words, nor by any forcible or very natural intendment. Nor does it appear with whom he left one copy. The statute says the service shall be made as directed in the service of summons in a civil suit. That direction is, that the officer shall deliver to the defendant a true and attested copy of the writ, with his return thereon endorsed ; or, in the absence of the defendant,. leave such copy at his usual abode with some person of sufficient discretion: and after naming some other case, adds, and the manner of such service shall particularly be made to appear in the officer’s return. It is obvious that all this must be done for each defendant. So have always been the decisions, At St. Albans, a year since, there came before this Court, a suit brought against Hunt & Reynolds, upon contract. [1 Vermont Rep. 148.] The officer returned that he served it by leaving a copy, whether with the defendant, or with the defen- . dants, we are not sure, but we inferred from the return that there was but one copy. This came up on a plea in abatement, [208] and the writ was abated. Hunt & Reynolds were partners in trade, and the suit was brought against them as partners ; and if the effect of the judgment could only have been to charge the property of the firm, we should not have abated the writ. But such judgment would go as effectually against the individual property, and the persons of each defendant, as against the property of the firm. Davis & Fletcher, for Waterford. Peck, for Brookfield. The difficulty in the case before us resulted from the issuing of one warning against several persons. When that is done, it must appear that service was made upon each. It would be sufficient in this case, if it appeared that the copy was left with the pauper in question ; but that does not appear. “ The within named persons,” to which the return might possibly allude, were three paupers and three selectmen. Though leaving copies with the selectmen would not vitiate the service made on the paupers, yet, their names being within, forcibly presents the uncertainty of the officer’s return, when used to show a warning out of the pauper in question. According to repeated and uniform decisions, there is no equity between towns thus litigating about the support of paupers. The town that would throw its burdens of this character upon any other town," must do it by virtue of some positive law, and must show themselves to act substantially according to the provisions of that law. The town of Waterford now claim under such positive law, but do not show that their warning was served agreeably to the provisions of that law. Thet judgment, therefore, ol the county court must be reversed, and A new trial granted. Upon a suggestion from the Court that the plea in this case, that the pauper -was unduly removed, was alike defective as a plea, that the plaintiff ought to be barred, without saying more 5 the counsel for Brookfield moved for leave to amend said plea, by adding the reason, to wit, that Brookfield was not .the place of the pauper’s last legal settlement. This was granted without objection.