Overseers of Dorset v. Overseers of Manchester

3 Vt. 370 | Vt. | 1830

Prentiss, Ch. J.,

delivered the opinion of the Court. — After the appellees had proved a settlement of the pauper in Manchester in 1815, by a year’s residence there, without being warned out, the appellants, in order to shew a subsequent settlement of the pauper in Dorset, offered in evidence the record of an order of removal from Middletown to Dorset, made and executed in 1824. That this order of removal was evidence, and conclusive evidence, of the settl^fnent of the pauper in Dorset, at the time the order was made, cannot admit of a question. An order of removal, unappealed from, is conclusive against the town to which the removal was made, and may be given in evidence, not only by the town in whose behalf it was made, but by any other town. Not only so, it may be given in evidence, and has the same conclusive efiect, upon the question of settlement arising between any other towns. It was observed by Buller, J., in Rex vs. Kenilworth, 2 Term Rep. 598, that there was no proposition in the law of settlements more clear, than that an order of removal, unappealed from,‘¡was conclusive as to all the world j and that this was so clearly and so universally established, that it ought never to be impeached. And in Rex vs. Corsham, 11 East, 388, it was directly and expressly decided, that an order of removal, executed and unappealed from, is conclusive as to the settlement of the pauper, at the time of the order, between parishes not parties to the order.

The rule, that when a fact, to which an estoppel applies, is distinctly averred or denied by one party, and the other, instead of pleading the estoppel, takes issue on the fact, he waives the es-toppel, and the jury are at liberty to find the truth, has no application to this case. A plea of estoppel must contain matter which precludes the other party from alleging or proving the fact* on which he relies; and when the matter does not amount to a full and complete estoppel, and cannot be pleaded as such, or the party ^ nQ 0pp0rtunjty t0 plead it, he may shew it in evidence. Though the order of removal, which was offered in evidence by the appellants, was conclusive that the pauper’s settlement was in Dorset in 1824, it would not estop or preclude the appellees from shewing that he had acquired a subsequent settlement in Manchester, and thus proving the fact alleged that his legal settlement was there. A judgement or decree, when given in evidence, as a collateral fact, between those who are not parties to it, is, in general, conclusive in its operation.

Judgement reversed, and cause removed to the county court for a new trial.