20 Vt. 309 | Vt. | 1848
The opinion of the court was delivered by
The question raised for the consideration of this court is, whether the decision of the county court, quashing the order of removal, is sustainable ? The case of Hartland v. Williamstown, 1 Aik. 241, is relied upon as sustaining the decision. The question in that case involved the validity of an order of removal, made by two justices in May, 1817, ordering the removal of the pauper, and his family and effects, from Williamstown to Hart-land, which was not appealed from and was offered as evidence in the case then on trial. This evidence was excluded by the county court, and for this cause the judgment of that court was reversed. It was insisted, that the order was void; but the supreme court held otherwise, and decided that the evidence should have been received. It is true, that the judge, in delivering the opinion of the court, says, that, on appeals from orders of removal, when the order and warrant are to remove “the pauper and family,” the orders have been quashed, and that these decisions, though recent, are to be regarded as correct. He farther remarks, that the officer, who is charged with the execution of the warrant of removal, has no certain means of knowing, nor is he a suitable person to decide, what persons of the family ought to be removed ; that the justices ought to decide and
The "case of Bristol v. Braintree, 10 Vt. 203, is also relied upon by the defendants. In that case the order of removal was made in cqnformity to the form prescribed by statute, and was like the order of removal in the case at bar. Upon the case coming into the county court, a motion was made to quash, upon the ground that the names of the members of the pauper’s family were not inserted in the order. The county court overruled the motion; and the supreme court affirmed their decision. The late chief justice, in delivering the opinion of the court, says, “ The statute neither in its enactments nor forms requires that the names of the family should be inserted in the complaint, order, or warrant of removal. The third section contemplates a proceeding only against the pauper. The form is general, — to remove the pauper with his family and effects, — and we can see no more difficulty in executing the warrant by removing the family without their being named, than in removing their effects, when not particularized.” He farther remarks, “ If, however, the order is bad on this account, as it respects the family, it should only have been quashed as to the family, and would have been good as to the pauper, and should have been affirmed as to him.” And farther, “To avail themselves of this objection, the defendants should have made it appear, that the pauper had a family; and the motion should have been to quash the order as to the family,” &c. In that case it did not appear, that the pauper had a family; and therefore, if the order was bad for not having designated the members of the family, it could not avail the defendants. It is apparent, from an examination of the case, that the court did not decide the question, which is raised in the case at bar.
But it is hardly possible to read the opinion of the court in Bristol v. Braintree, without perceiving that Judge Williams was of
The case of Newhury v. Brunswick, 2 Vt. 151, was this. An order of removal of “ N. P. Harriman, his family and 'effects, from Newbury to Brunswick,” was made. The order did not name the members of the family; and for this cause a motion was made in the county court to quash the order. The county court quashed the order as to the family, to which decision exceptions were taken. The family consisted of Harriman’s wife and their four minor children. The supreme court affirmed the decision of the county court. Judge Paddock, who delivered the opinion of the court, says, “As it respects the decision of the county court, in quashing so much of the proceedings in the case as relates to the family of Harriman, the pauper, the court were correct. The family ought not to have been named, either in the complaint of the overseer, in the warrant to bring Harriman before the justices, or in the order of removal; and if they were, it was surplusage, and it was well to have it expunged from the record. But it will be seen, by looking at the act upon which the prosecution is founded, that the warrant of removal directs the officer to remove and transport the pauper, with his or her family and effects. That which is meant in the act by “ family ” are those, and those only, for whose support the law obliges a person, whether male or female, to provide; so that no proceedure under the statute is intended, nor can it have the effect to divide and break up families; but on the contrary the town, which is bound to support the principal head of the family, is bound to support those, who have their residence with such principal.”
Here it is worthy of remark, that the court sustain the decision of the county court, upon the ground that the decision, in quashing so much of the proceedings as related to the family, was but quashing that which was surplusage, and for that reason ought to be expunged from the record; — that an order for the removal of the pau
There is nothing in the case above referred to, sustaining the decision of the county court, except the obiter dicta of the judge, who delivered the opinion of the court in Hartland v. Williamstown; and those remarks not being called for by the case then before the court, we cannot regard it as an authority to control the present case. But the question still remains, was it necessary, to justify the removal of the wife and minor children, that their names should have been inserted in the order and warrant' of removal 1 So the county court appear to have considered, — but, as we think, .erroneously. As was remarked by the late Chief Justice Williams, in Bristol v. Braintree, “ The statute neither in its enactments nor form requires, that the names of the family should be inserted in the complaint, order, or warrant of removal.” “ The form of the order is general, — to remove the pauper, with his family and effects; and we can see no more difficulty in executing the warrant by removing the family without their being named, than in removing their effects without their being particularized.” With this view of the law we are entirely satisfied. The insertion of the word “ family ” in the order and warrant of removal is but a compliance with the forms prescribed by law; and if it were not for that, it would be entirely unnecessary to insert it. The wife and children take a derivative settlement from the husband and father; and the order for Ms removal necessarily carries with it, as incident thereto, that of his wife and minor children, — for they cannot be separated.
It is somewhat surprising, that it should ever have been thought necessary to quash a proceeding like the present, which is made in strict and literal conformity to the forms prescribed by statute. The question, however, has recently received the consideration of the court in the case of Burlington v. Essex, 19 Vt. 91. In that
The result is, that there is error in the judgment of the county court, quashing the order and warrant of removal as to the wife and minor children of the said Eseck Comstock, and the same is reversed ; and the clerk of this court will farther enter, that the motion to quash the said order of removal is overruled, and that the said paupers were duly removed.