Danville v. Putney

6 Vt. 512

• Court: Supreme Court of Vermont
• Decided: March 15, 1834
• Status: Published

Opinion

The opinion .of the court was delivered by

Collamer, J..

— The first question arising in this case is, whether a poor person confined in jail on execution, brought and committed from a neighboring town, is a transient person, within the meaning of the 11th section of the aet providing for the maintenance of the poor.

statute an ent're system within itself; and poor persons who become chargeable and are relieved by a town where they have not legal settlement, are either persons “ coming to reside ” within the 3d and 4th sections, or “ transient ,, ... , , , , persons within the 11th section.

It cannot be said he has come to reside, when imprisoned by force of law. The time which should transpire under such imprisonment could not be counted as so much time of residence towards gaining a settlement. The word transient in this statute, is not to be taken literally, but as contradistinguish-ed from and including all but those who have \come to reside.” This has been decided.

The next question is, in such cases, is an order of removal necessary ? By the very terms of the statute, the order of removal is confined to persons “ who shall have come to reside.”

In relation to the motion in arrest for the insufficiency of the declaration, the only defect of which complaint is made, is, that it is not declared to be upon the statute. A general statute need never be declared on, except in criminal or penal cases. The first count avers all things required by the 11th section, and thus stating the liability, thereupon raises the as-sumpsit, without setting up or expressly declaring on the statute. This is sufficient and the usual course on the fourth section and on the statute for betterments.

But the statute expressly provides in this 11th section, that the recovery may be “ by an action for money laid out and expended.” Such is the second count, which is sufficient. The case Middlebury vs. Hubbardton, (Chip. Rep. 205,) was-not an action on this section, and what is there said on this subject is extra-judicial. The statute is too clear and explicit to be explained away. Even in a penal case, where the statute gives the form, the court requires no more. — Hubbell vs. Gale, 3 Vt. Rep. 266.

Judgment affirmed.