GRAND ISLE, not even after an order of removal, unless they are sick or unable to be removed as provided by the 4th section. January, 1842. Harrington V. Town of Al. burgh. In this case it is not pretended that the pauper was sick and unable to be removed, within the meaning of the 4th section, or that the expenses claimed were incurred after the order. There is no pretence in this case for saying that the pauper was a transient person, within the meaning of the 11th section. The facts stated in the case show that she came to Alburgh to reside. The adjudication of the court, making the order of removal, not having been appealed from, is conclusive evidence that the pauper came to Alburgh to reside within the meaning of the 3d and 4th sections. This order, if unappealed from, is conclusive upon all the facts then adjudicated, not only as against Randolph, but all the world. If these positions are sustained, the defendants were not liable for the support of this pauper beyond the sum of $5.00, and the decision of the court below, on this point, ought to be affirmed. The opinion of the court was delivered by BENNETT, J.-The only point in the charge of the court, material to consider, is the instruction given by them, that the plaintiff was entitled to recover of the town for supporting and nursing the pauper, and necessaries furnished her, only to the amount of five dollars. This court are unanimous in the opinion that, in this, there was error, and for this cause the judgment of the county court should be reversed. This action having been brought for services rendered before the repeal of the 20th section of the act of 1797, relating to legal settlements and providing for the poor, is of course to be governed by the law then in force. In Ives v. Wallingford, 8 Vt. R. 224, it was held that the overseers of the poor of a town could not bind the town for the support of a pauper, having a settlement therein, beyond the sum of five dollars, without an order from a justice of the peace, in pursuance of the 20th section of the act. The only question is this; is this a case, from the facts detailed in the bill of exceptions, which requires an order from a justice, in order to render the town liable beyond the sum of five dollars. The poor in a 1842. Harrington v. town may all be embraced in one of three classes; such as GRAND ISLE, January, have a settlement in the town; such as come to reside in it, and the transient poor, who are for the time being in the town. No question can arise whom it was the intention of the legislature to embrace in the first class. The second Town of Alburgh. class embraces such as come to reside in a town in the ordinary way, and under such circumstances, and have such a residence, as, if continued for the requisite time, would consummate a legal settlement. All others fall within the class of transient poor. The case shows that this woman was brought into Alburgh, by some person unknown, from across the lake, and left at the house of a Mr. Sowles, sick and in need of relief, and that she was immediately provided for by the overseers of the poor of the town. It is evident that this pauper was transported into the town of Alburgh with an intent to render the town chargeable with her support, or, at least, the evidence tends to prove it, and if so, so far as the question now before the court is concerned, it is the same thing. In no point of view does she come to reside in the town in such a sense as to fall within the second class of poor. She has but a naked commorancy, a simple being within the town and this brought about without her agency, and probably against her will. We are all agreed that she must be regarded as one of the transient poor, falling within the 11th section of the statute. The question then returns, does the case of a transient person, coming within the 11th section of the statute, also fall within the 20th section, and require an order from a justice of the peace? I think not. The words of the 20th section are, if any poor person belonging to any town or district within this state shall apply for relief,' &c. It would be, I think, a forced construction of language to hold that transient paupers belong to the town into which they may be thrown. The obvious meaning of the term does not include such, and there is no reason why it should have a straightened construction. The term is satisfied by including such poor as have a legal settlement in the town, and such as come to reside in it, in the ordinary way; and with this the court should be content. The majority of the court now present concur in this view; but one of my brethren (Judge Collamer,) is of the opinion that cases falling under the 11th VOL. XIV. W. R. IV. 18 GRAND ISLE, Section, as a general rule, should also be brought within the January, 1842. Administrator of Miller v. 20th section; but, in this case, inasmuch as the account of the plaintiff had been adjusted and allowed by the committee of the town, and their report accepted by vote of the town, and Truman. provision made for the means of payment; and the town had made the claim of the plaintiff the basis of a demand in their favor against Randoph, and had sued Randolph and received satisfaction; it is, he thinks, now too late for Alburgh to assume, as a ground of defence, the want of an order. The judgment of the county court is reversed. ADMINISTRATION OF JOHN MILLER V. JOHN TRUMAN. In this case, a commission had been issued by the county court, on the application of the defendant, to take testimony in Canada. By the terms of the commission, six days notice was to be given to the plaintiff. The defendant notified the plaintiff that the testimony would be taken at the city of Quebec, on or about a day named in the notice. The testimony thus taken was excluded by the county court, and judgment rendered for the plaintiff, to which the defendant excepted. The opinion of the court was delivered by REDFIELD, J.-The notice was insufficient. It should have specifically named the time and place of taking the testimony. Judgment affirmed. HORACE WADSWORTH V. ALANSON M. CLARK, Trustee of Where a person, sued as trustee, disclosed that a suit in chancery was commenced by the principal debtor against him, calling for an account, &c., and was set down for trial, on the bill, answer and testimony, before the service of the trustee process, and was heard by the chancellor before filing the disclosure, but not decided;-it was held that he was not chargeable under the trustee process. THIS was a trustee process. In the county court the said Alanson M. Clark made his disclosure, in writing, setting forth that the principal debtor, Thomas Clark, in 1835, conveyed to him a large amount of property for the purposes and upon the conditions and trusts set forth in the instrument of conveyance; that said Thomas, at the January term of the supreme court for Franklin county, brought his bill in chancery against the said Alanson M., stating, among other things, that said conveyance was obtained by artifice and undue influence, and that said Alanson M. was liable to the said Thomas for all the personal property so conveyed. And the said Alanson M. in his said disclosure, further set forth that said bill in chancery was still pending; that in his answer thereto, he had denied that he had in his possession, upon a just settlement of said trust, any goods, chattels, rights or credits of the said Thomas. It appeared that testimony had been taken in said suit in chancery and that the case was set down for trial before the service of the trustee process and was heard by the chancellor before the disclosure and continued for the decision of the court. The county court adjudged that the said Alanson M. was not chargeable, as trustee of the said Thomas, and dismissed the said Alanson M. with costs. To which judgment the plaintiff excepted. A. G. Whittemore, for plaintiff. A. O. Aldis, for A. M. Clark. The opinion of the court was delivered by BENNETT, J.-It is apparent that all the property which has gone into the possession of Alanson M. Clark, from GRAND ISLE, 1842. Wadsworth, V. Clark. January, 1842. Wadsworth v. Clark. GRAND ISLE, Thomas Clark, by means of which the plaintiff now seeks to charge Alanson, as the trustee of Thomas Clark, is involved in the proceedings of the chancery suit of Thomas Clark. That suit had been set down for a hearing before this suit was brought; and a hearing in fact was had by the chancellor, before the disclosure in this case was filed, though the case was still with the chancellor for advisement. We cannot anticipate the chancellor's decree, and Alanson must perform it at his peril. If the trustee in this case should be made chargeable, he might be compelled to pay the demand a second time. The doctrine of the Massachusetts courts is, that a demand in suit cannot be reached by a trustee process, unless, by their rules of practice, the cause is in that situation that the party can interpose the proceedings in the trustee suit in bar of the action; but if he can, the pendency of the suit is no objection. The case of Trombly & Sax v. Clarks, 13 Vt. R. 123, recognizes the same doctrine. Though this case is under the revised statutes, still they do not apply to a case pending in chancery. The proceedings of that court can in no way be arrested, and we think it is clear that the matters involved in the chancery suit, which had in fact gone down to a hearing before this disclosure was filed, should not be subject the trustee process. In this view of the case, we have no occasion to inquire whether, from the facts disclosed, we should otherwise hold the trustee chargable. The judgment of the county court is affirmed. |