Inhabitants of Bangor v. Inhabitants of Deer-Isle

The cause being continued nisi, the judgment of the Court was delivered in the ensuing term at Cas tine in the county of Hancock, to the following effect, by

Mellen C. J.

It is admitted that the notification in this case is sufficient as to Samuel Staple and his wife; and the only question is whether it is sufficient as to the children ; who were, at the time of the notice, all minors, though not so described in the notification. Taking the whole notification together, it may fairly be considered as equivalent to a statement that11 Samuel Staple, his wife, and several of their children'’’’ had become c hargeable. Is such notice good ?

The cases cited by the defendants’ counsel from Salkeld and Comyn related to the sufficiency of orders of removal;—those cited from Massachusetts related to the sufficiency of the notice, which had been given pursuant to the provisions of Stat. 1793. ch. 59. sec. 12. There is no such provision as this in any of the English statutes relating to the poor. The decisions ir Massachusetts seem to be founded upon the analogy between an order of removal in England, and a notification under our statute of 1793. It is contended by the plaintiffs’ counsel that the case at bar differs from the cases of Embden v. Augusta and Shutesbury v. Oxford; because there the word family was used, and here the word children, which is supposed to be sufficiently descriptive and particular. But in the case of Ware v. Stanhead-Mount-Fitchel, 2 Salk. 488. it was decided that an order to remove H. with his wife and children was bad; and in Comyn's Digest, Justices of the peace B. 73. it is stated that an order of removal is bad if it does not state the ages of the children ; that is, probably, so far as is necessary to shew them to be incapable of having any other than a derivative settlement.

By Stat. 1793. ch. 59. sec. 12. the overseers to whom the notification is sent are authorized to remove the persons chargeable. Hence the necessity that the notice should state the names of such persons, or otherwise so describe them, that the overseers may certainly know whom to remove. In 3 D. & E. 44. 637. it is settled that none of the family are removable except those who are chargeable.

As the decided cases make no distinction between the terms family and children, when used in an order of removal; and none stems to exist between them when used in the statute notification, if we duly consider the object in view in sending the notification, we do not feel at liberty to make any distinction in deciding this cause ; more especially as by so doing we should extend the effects of an estoppel, perhaps to the exclusion of the truth.

According to this opinion the verdict is in part incorrect j and pursuant to the agreement of the parties it must be altered so as to stand for the expenses of supporting the husband and wife only.