Town of Marshfield v. Town of Calais

The opinion of the court was delivered by Williams, Ch. J. In this case the town of Calais appealed, and two motions are before us, — one to dismiss the appeal, the other to quash the order. The order of removal is the adjudication of the [601] justices, determining the séltlement of the pauper, which, if unappealed from, is conclusive as to the settlement. Something farther, however, is requisite on the part of the town making the order; they must cause the same to be executed. They are also required to cause a true and attested copy of the order to be left with the overseer of the poor of the town, to which the removal is to be made, within thirty days after the order is made, unless the pauper is actually removed within that time. This copy is to be attested by the court who made the order, and, as there is no way prescribed by which the evidence of leaving the copy is to be preserved, whenever that fact comes in question, it must be proved by the same kind of testimony by which other facts are to be proved. Whenever, therefore, this question became one of any importance, the town of Calais would have to remain prepared to meet any evidence of that kind which might be presented. The execution of an order by the actual removal may be prevented in a variety of ways, — as by the death, or absconding, of the pauper. In the case before us, as there was no actual removal, and no other copy left than the one mentioned in the bill of exceptions, the town of Marshfield allege that the order, to use the language of the motion, “died a natural death.” It may not be necessary to inquire what would have been the effect of their proceedings, if no appeal had been taken. It is evident that the town of Marshfield intended to complete them, by taking out the warrant and causing a copy of that to be left with the overseer of the poor of the town of Calais; and we are aware that it has been considered by some that this was a compliance with the requirements of the eleventh section of chapter 16 of the Revised Statutes. If this order had been completed by leaving the copy required by the statute, notwithstanding no removal was in fact made, the settlement of the paupers and their children would have been fixed and adjudged to be in Calais in all future litigations on this subject. The town of Marshfield did not abandon the order, but, on the contrary, endeavored to perfect it by taking out a regular warrant of removal, and causing their constable to leave a copy of the warrant within thirty days from the time of making the order. It is not for them to say that they meant nothing by this proceeding, or that their proceedings are all void and of none effect. The town of [602] Calais were under no obligation to decide for themselves that these proceedings were irregular, or to run the hazard of meeting such evidence as might be brought hereafter. From the frail nature of human testimony, and the uncertain recollection of witnesses, they run some considerable risk of hereafter meeting testimony to prove that such a copy was left, as is required by the eleventh section of the statute aforesaid. As there was no abandonment of the order by the town of Marsh-field, no notice to the other town that they did not mean to rely upon the same, no reason given why the constable did not leave the paupers as well as a copy of his warrant, when he attempted to serve the same, the overseers of the poor of Calais might reasonably “think themselves aggrieved,” and, out of abundant caution, take out an appeal, for the purpose of having the order of removal quashed, that it might never thereafter appear to their injury; and we apprehend it is not for the town of Marshfield to say that their own proceedings are void, and that they have failed of accomplishing what they intended. There is a case in 13 East 51, Rex v. Inhabitants of St Mary-lebone, somewhat analogous to this, though under a different statute, where the court of King’s Bench sustained an appeal under circumstances very similar. The judgment of the county court is therefore reversed and the order of removal quashed.