Town of New-Haven v. City of Vergennes , 3 Vt. 89 ( 1830 )

Williams J.

delivered the opinion of the Court. — The only question in this case is, whether the warning read was sufficient to prevent the pauper from gaining a settlement in Vergennes ?

The warning, and the proceedings thereon, are so obviously defective that it seems as if there was scarcely an attempt to comply with the statute. Two of the defects only will be noticed.

The town clerk has not recorded the officer’s return on the warning. The statute, which was in force when the warning was served, and which regulated the proceedings in relation to warning out persons to prevent them from obtaining a settlement, expressly made it the duty of the constable to return the precept for warning, with his proceedings thereon, to the town clerk, within eight days after service ; and it was made the duly of the clerk to record both the precept and return. That which is required to be recorded must be recorded within a year from the time the persons came into town,to prevent their gaining a settlement therein. Mountholly vs. Panton, Bray. Rep. 182. All persons interested in the question of settlement are to recurto the records to ascertain, whether a person has been legally warned $ and what does not appear of record may be treated as not having been done.

From this view of the case it is manifest, that'this warning, and the proceedings thereon, cannot now be made legal either by the production of the original warning, or by the constable’s amending his return on the 'original, if that was defective. The settlement of the pauper was fixed in Vergennes at the end of the year, if the proper measures had not then been completed to prevent such settlement.

But if the original precept, with the officer’s return thereon, had been recorded, it will be found that it is not conformable to the statute. The constable does not state in his return that he delivered a copy of the precept,witA his return thereon, to the persons therein named. The law requires that these precepts should be served in the same manner as writs of summons are to be served ; and writs of summons are to be served by delivering to the defendant, or leaving at the house of his usual abode, a true and attested copy of the writ, withthe officer's return thereon : and there is no difference in this respect whether the copy is delivered to the defendant personally, or left at his house ; t'he duty of the officer is the same. This return would be bad as a writ of summons, and it is a defect in the service of this warning which prevents it from baving any effect in preventing the persons named therein from obtaining a settlement in Vergennes. This was decided is the case of Castleton vs. Clarendon, Bray. Rep. 181.

Bates, for the town of JYew-Haven. Woodbridge and Hawley, for Vergennes.

There is another defect in this service. The constable does not state that he has delivered a copy to each of the persons to be warned out, and it does not appear that the warning was ever served on the pauper who was removed. This question has also been decided in the case of Waterford vs. Brookfield, (2 Vt. Rep. 200.) A return precisely similar to this was adjudged to be bad. The judgement of the county court must, therefore, be affirmed. .

Judgement affirmed.