1 Aik. 290 | Vt. | 1826
The opinion of the Court was delivered by
The 5th section of the statute of 1817, for the support of the poor, &c. requires that an attested copy of the order of removal shall be left with some one of the overseers of the poor of the town to which the pauper shall be ordered to remove, within thirty days after the making such order.
Although there is no other obligation upon any town to support that class of citizens called paupers, than what arises from positive statute, and consequently a strict and literal compliance-with its requisitions is necessary; yet it has been repeatedly decided, that where the appeal is entered within the thirty days, no exception can be taken by the appellant, on account of the neglent of the appellee, in giving the notice required by this section of the statute.
The principal object of this clause of the statute is, that tbe town to which the pauper was ordered to remove, should have seasonable notice of the order; and if the appeal is taken from the order within the time, this defect could not have been in contemplation; and the court have presumed notice to be given ; or that the claim to the notice pointed out in the statute in such case, is waived by the party appealing. But no such presumption arises, where the appeal is not taken within that time.
Whether an appeal can be regularly taken in any case from an order of removal, where there has been no removal in fact, and no notice of the order, is not material to decide; though it maybe proper to notice, that where there is a removal, as in this case, the party can claim an appeal. The pauper is cast upon the town for maintenance; perhaps wrongfully — and without the right of appeal, there can be no redress but by a proceeding under the statute, to remove him to the place of his legal residence ; which may be uncertain, or unknown ; thus by a perversion of the use of the statute, the town removing, might be
In this case, the party appealing has pleaded, that the pauper was unduly removed; and pn thp trial of this issue, the court depided it was inciimbent upon the opposite party to show notice qf the order, of removal.
Thq party appealing might have availed himself of this objection, by motion to quash ; and a decision in his favour upon such motion, or upon any dilatory plea, would have left the rights of the parties upon the merits, where they were before thfe order of removal; but under the issue upon the record a verdict would be conclusive as to the settlement of the pauper. ' This would be giving an effect to the statute never contemplated. The legislature have declared what shall constitute a legal settlement; and in case a question arises between two towns as to such settlement, the mode of proceeding, for the purposes of obtaining a determination thereon, is also pointed out by the Statute; and all questions arising under this part of the statute, pither as to the qualification of the persons complaining, or of the magistrates, the form or substance of the complaint, service upon, and proceeding with the pauper, the regularity of the order, and notice to the town to which the removal is ordered, &c. must and ought to be presented, and decided, as dilatory pleas. If the party appealing will put in issue the question of settlement, by pleading as in this case; no informality or irregularity in the proceeding can be noticed. This seems to be the law, as decided in the case of Richmond vs. Milton, and we consider it correct.
The verdict, therefore, must be set aside, and a new trial granted.
