Town of Wilmington v. Town of Jamaica

The opinion of the court was delivered by Wilson, J. In this case it is stipulated by the parties that the issues joined upon the second and'third pleas were waived in the court below, and that the only questions in controversy arise upon the demurrer to the replication to the first plea. Upon demurrer to the replication the case stands upon the facts alleged in the complaint, order of removal, plea and replication. We have not seen the complaint, but think it must be considered as correct. The only objection made to the complaint is, that it does not state the place of the pauper’s legal settlement. But such complaint need not allege where the pauper’s settlement is. In many cases the place of such settlement could not be known to the. plaintiff town until determined by the justices, and then it.should be incorporated in their record. Two justices are authorized by statute “to examine, on oath, such stranger so before them, and any other person, touching the place of settlement and the ability of such stranger,” and upon the evidence thus obtained, to find the facts upon which they determine whether an order of removal should be made or not. The place of legal settlement of the pauper, as well as the other facts found and determined by the justices, should be set forth in the order of removal. In this case the justices state in their order that “it is considered by the court that the said Emily Davidson has come to reside in the town of Wilmington, and has not gained a legal settlement therein, and that the said Emily Davidson is chargeable to said town of Wilmington, when, in fact, the said Emily belongs and has her legal settlement in the town of Jamaica, and that 'she ought of right to be removed to said town of Jamaica, agreeably to law.” The order states the judgment of the justices ; it also states the facts on which the judgment is founded, and they are sufficient prima facie to justify the removal of the pauper. The plea alleges that, “ at the time of the making of said order, of removal, the said Emily Davidson was under coverture of one George David [697] son, her husband, to wit, at said Wilmington.” We think the plea was good until answered by the replication, for it has been frequently decided in this state that when the husband and wife live together in the same town, an order can not be made tó remove her without removing him. But the replication sets forth facts which destroy the effect of the plea. It admits the coverture, but alleges that the said George Davidson abandoned and deserted his wife and left said Wilmington and removed without this state to parts unknown to the plaintiffs, and that said George at the time of the making of said order of removal still remained without this state, neglecting and refusing to provide for her support. We think the replication is fully sustained by the authorities cited by the plaintiffs’ counsel. It is said by the defendants’ counsel that upon the facts set forth in the pleadings it does not appear that the .pauper had her settlement in J amaica. This position is based upon the supposition that the appeal vacated the judgment and order of the justices. Whether such was the effect of the appeal we have no occasion to decide. It is, however, quite clear that the appeal did not vacate the facts on which the judgment of the justices is founded, but those facts, as set forth in the order, stand as part of the pleadings in the case. Section 1 of chapter 19 of the General Statutes provides that “ a married woman shall always have the settlement of her husband if he have.any within this state : otherwise her own at the time of marriage, if she had any, shall not be lost or suspended by the marriage.” It would seem from the language of the statute above quoted that the wife is remitted to her former settlement only in cases where the husband has no legal settlement within this state. The justices have found and stated in the order of removal that the “ said Emily Davidson belongs and has her legal settlement in Jamaica.” This fact is apart of the pleadings and is admitted by the demurrer. The plea does not deny that the husband had a legal settlement in the town of J amaica at the time the order was made. It is therefore wholly immaterial in this case whether Jamaica was the place of her legal settlement at the time of marriage, or the place of her settlement derived from the legal settlement there of her husband. The judgment of the county court is affirmed.