Town of Danville v. Town of Peacham

41 Vt. 333 | Vt. | 1868

The opinion of the conrt was delivered by

Rece, J.

The motion to quash is based on an alleged defect apparent of record upon the face of the order. The motion alleges that the order embraces two persons, Wealthy Goodall and Ivory EL Goodall, Jr., and assumes that they are not of the same family, but stand in different relations to the respective towns. The effect of this motion must be determined by reference to the order. The order recites that it was made upon a complaint against Wealthy Goodall, former wife of Samuel Shepherd, late of Peacham, deceased, and Ivory H. Goodall, Jr., child of said Wealthy, etc., and, after stating that “ said Wealthy and Ivory H. Goodall, Jr., have come to reside,” etc., it proceeds: “ Therefore the said court do order and direct that the said Wealthy Goodall, wife of Samuel Shepherd, of Peacham, and Ivory H. Goodall, Jr., her child, do remove, with her family and effects,” etc., “ and, on neglect,” etc., “ it is ordered that .the said Wealthy and Ivory EL Goodall, Jr., be removed and transported with her family and effects,” etc. The words “ her family” mean the family of Wealthy Goodall, and, as Ivory H. Goodall, Jr., is described as her child, the fair intendment and construction of the order is that the said “ Ivory H. Goodall, Jr., her child,” was of her family, especially as no other person appears to whom the word “ family” can apply. On this construction, the objection made to the order of removal, is obviated. Burlington v. Essex, 19 Vt., 91, although not identical with this in the language of the order, fairly justifies this conclusion. In that case, it was stated in the order, that the justices considered that “ Henry H. Messenger with his wife, Susannah H. Messenger, and his four children,” had become chargeable, etc., that his legal settlement was in Essex, and that, “ of right, he ought to be removed with his said wife and family;” and it was ordered “ that the said Senry S. Messenger do remove, with his said wife, Susan-nah S. Messenger, and their four children, and effects,” etc. It will be noticed that, in that case, the children are nowhere stated to be minors; and in the conclusion, where the justices come to order the removal, the word family is not used. The court, in that case, said they would intend that the children were minors subject to parental control, rather than that they were adults and emancipated'. If in fact, in the case at bar, no such dependent relation exists between the said Wealthy and her child, as justifies the removal of both under one order, the defendant town might have presented the question by plea, upon which an issue could have been formed and the facts found. But the defendants not choosing to do this, the court ought not to apply the severest criticism against the order, but rather incline to a construction in favor of its validity, if the language will warrant it. Derby v. Barre, 38 Vt., 276, is relied on by the defendants’ counsel in support of the motion to quash. But that case differs from this. That order was for the removal of “ Nancy Wébb and Sarah A. Webb, her daughter.” In the case at bar, Ivory H. Goodall, Jr., is described as the child of said Wealthy; child being an appellation more commonly used to denote the young rather than adults, while as to the word daughter it is not so. But a more decisive difference in the two cases is that, in that case, Sarah A. Webb was nowhere described in the order otherwise than as the daughter of Nancy Webb. The word family was not mentioned in the order at all, and nowhere in the proceedings except in the complaint of the overseer, in which, it is true, Sarah A. Webb was described as the daughter and as of the family of Nancy Webb. Sustaining the validity of the order in the case at bar, does not conflict with the decision in Derby v. Barre.

Judgment reversed, motion to quash overruled, defendants to answer over, and case remanded.