The opinion of the Court was delivered by
Hutchinson, J.
A plea has been filed, on the part of Bradford, that the said pauper was unduly removed from said Corinth to said Bradford, concluding to the country. No objection appears to have been made to the reception of this plea, but issue joined thereon.
That issue has been tried in the county court, and on that trial it was conceded, that Bradford was the place of the last legal settlement of the pauper. On that concession, the counsel for Corinth rested the cause, probably'considering, that the plea put in issue nothing but the question of settlement, which was already conceded.
But the counsel for Bradford contended, that the plea put in issue, and it was necessary for Corinth to prove the fact, that the pauper was chargeable, or was likely to become chargeable, to said Corinth; and requested the court so'to charge. The court refused so to charge; but did charge, that the overseers of the poor of Corinth were entitled to a verdict without such testimony. A verdict was returned in favour of Corinth, and the above decision of the court was excepted to, on the part of Bradford; and a new trial is now urged because of that decision.
There is some difficulty in disposing of this question so as to prevent a surprise that might operate to the injury of one party or the other. The concession made on the part of Bradford, that the pauper was settled there, might be made in a full reliance upon the other point for success, and might be intended for that trial only; while a contrary decision of the court might have equally surprised Corinth, because they supposed the plea put in issue the settlement only.
There can be no doubt but the fact of the pauper’s being chargeable, or likely to become so, is of an interlocutory nature, and is intimately connected with the right of the magistrates to hold jurisdiction over the pauper, and make any order for his removal: hence the orders are uniformly quashed, which do not show the fact adjudicated upon; but yet it has nothing at all to do with the question, where his legal settlement is; or, to what place he shall be removed, if any order be made for his removal.
[126]*126It is easy to conceive, that a pauper may be removed to the place of his legal settlement, at a time when he is not chargeable, nor likely to become so; and for this reason the order ought to be quashed; and at a later period, he may become chargeable, and may well be removed. The quashing, therefore, should be for a cause apparent of record, and show an irregularity aside from the merits of the settlement, that it may not interfere with another order of removal to the same place, when new occurrences render the same proper.
In civil actions, while almost any matter, showing that there is no cause of action, may be given in evidence under the general issue; yet, 'whatever operates as a temporary bar, and virtually admits, that the cause of action may, at some future period, avail the plaintiff, must be exhibited in a special plea, or with special notice. So here, if the pauper was legally settled in Bradford, an order of removal to that place may, at some day, be proper. If it is not now proper, because the pauper is not now chargeable, nor likely to be so, that should be treated as a temporary bar to the claim of Corinth, and be presented and urged in a motion to quash, or a plea in nature of a plea in abatement or in bar.
The English practice in pauper cases would leave a doubt, whether this question can be raised at all in a court of appellate jurisdiction, otherwise than upon objections to the order upon the face of it. In the third of Burns’ Justice, 471, after reciting many cases of orders being quashed for a defect in the order in this respect, it is said, that it does'not appear from any adjudged case, that, upon appeal, it was ever controverted, whether the person wás, or was not, likely to become chargeable. Either the persons removed were all confessedly of this description, or the recital by the justices, of their adjudication upon this point, was deemed conclusive; and no decision gives us any light upon the subject.
But, there, as here, the decisions were usually exparte, in relation to the parish to which the pauper was removed, but they were in presence of the pauper, who, by their statute, has a right to appeal. Hence it is probable, that his resistance to a premature removal might save the necessity of raising the question by proof at the sessions. The analogy of other cases would seem to require, that the town, to which the pauper is sent by an exparte process, should somewhere have an opportunity to litigate every important allegation in the complaint and order; and one as much as another, if done in due season, and by a proper motion or plea.
It would be a total departure from this analogy to decide, that the fact of being chargeable, or likely to become so, should be the essential fact to give the magistrates jurisdiction, and, that they must adjudge this in the affirmative, and so certify, or their proceedings will be quashed for this defect; and yet decide, that the town to which the pauper is removed can never in any way dispute tliis fact, after they have notice of the order.
[127]*127The language of our statute attaches the same importance to this fact, as that of the English statute; and, so far as the argument of protection to the pauper’s rights should be weighed, it might seem more important here than there, because our statute gives the pauper no right of appeal.
This is the first case recollected, in which the”same question has been urged in the court appealed to in this state. It may be the first case in which it could be raised with plausibility. It may have been now raised upon a sudden failure of the de-fence upon the merits.
There seems at first view, no great hardship to the town wdiere the pauper has his legal settlement, for him to be sent home, even if he is not likely to become chargeable to any town.
But, upon reflection, the removing a man from his chosen residence, and disorganizing his v/hole plans of gaining a livelihood, and forcing him to reside in a given town, whether encouragement is, or is not there afforded for the pursuit of his particular calling, has a powerful tendency to reduce men to pauperism; while a free choice of the place, as well as the manner of each man’s pursuits, affords encouragement to industry, and facilitates the acquisition wealth.
But it must not be inferred, from what is now observed, that an order will be quashed upon any nice or difficult point in the weight of evidence. A man, whose means of subsistance are so scanty that he could not meet a day of sickness, of himself or famliy, without assistance from the town or from his neigh-bours, is likely to become chargeable within the meaning of the statute : and the town is not obliged to wait till he is become actually chargeable before they remove. Otherwise, of a man in profitable business, increasing in wealth, and already able to stem the torrent of adversity, which, by the way, is not seen approaching. If a case should arise so strongly marked as to afford presumption of unworthy motives in the overseers, and, perhaps, partiality in the magistrates who now may be inhabitants of the town from which the removal is ordered, it does seem-proper that, in such a case, the question should be revised at the instance of the town that is, or may be, affected by the removal.
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The opinion of the Court was delivered by
Hutchinson, J.
A plea has been filed, on the part of Bradford, that the said pauper was unduly removed from said Corinth to said Bradford, concluding to the country. No objection appears to have been made to the reception of this plea, but issue joined thereon.
That issue has been tried in the county court, and on that trial it was conceded, that Bradford was the place of the last legal settlement of the pauper. On that concession, the counsel for Corinth rested the cause, probably'considering, that the plea put in issue nothing but the question of settlement, which was already conceded.
But the counsel for Bradford contended, that the plea put in issue, and it was necessary for Corinth to prove the fact, that the pauper was chargeable, or was likely to become chargeable, to said Corinth; and requested the court so'to charge. The court refused so to charge; but did charge, that the overseers of the poor of Corinth were entitled to a verdict without such testimony. A verdict was returned in favour of Corinth, and the above decision of the court was excepted to, on the part of Bradford; and a new trial is now urged because of that decision.
There is some difficulty in disposing of this question so as to prevent a surprise that might operate to the injury of one party or the other. The concession made on the part of Bradford, that the pauper was settled there, might be made in a full reliance upon the other point for success, and might be intended for that trial only; while a contrary decision of the court might have equally surprised Corinth, because they supposed the plea put in issue the settlement only.
There can be no doubt but the fact of the pauper’s being chargeable, or likely to become so, is of an interlocutory nature, and is intimately connected with the right of the magistrates to hold jurisdiction over the pauper, and make any order for his removal: hence the orders are uniformly quashed, which do not show the fact adjudicated upon; but yet it has nothing at all to do with the question, where his legal settlement is; or, to what place he shall be removed, if any order be made for his removal.
[126]*126It is easy to conceive, that a pauper may be removed to the place of his legal settlement, at a time when he is not chargeable, nor likely to become so; and for this reason the order ought to be quashed; and at a later period, he may become chargeable, and may well be removed. The quashing, therefore, should be for a cause apparent of record, and show an irregularity aside from the merits of the settlement, that it may not interfere with another order of removal to the same place, when new occurrences render the same proper.
In civil actions, while almost any matter, showing that there is no cause of action, may be given in evidence under the general issue; yet, 'whatever operates as a temporary bar, and virtually admits, that the cause of action may, at some future period, avail the plaintiff, must be exhibited in a special plea, or with special notice. So here, if the pauper was legally settled in Bradford, an order of removal to that place may, at some day, be proper. If it is not now proper, because the pauper is not now chargeable, nor likely to be so, that should be treated as a temporary bar to the claim of Corinth, and be presented and urged in a motion to quash, or a plea in nature of a plea in abatement or in bar.
The English practice in pauper cases would leave a doubt, whether this question can be raised at all in a court of appellate jurisdiction, otherwise than upon objections to the order upon the face of it. In the third of Burns’ Justice, 471, after reciting many cases of orders being quashed for a defect in the order in this respect, it is said, that it does'not appear from any adjudged case, that, upon appeal, it was ever controverted, whether the person wás, or was not, likely to become chargeable. Either the persons removed were all confessedly of this description, or the recital by the justices, of their adjudication upon this point, was deemed conclusive; and no decision gives us any light upon the subject.
But, there, as here, the decisions were usually exparte, in relation to the parish to which the pauper was removed, but they were in presence of the pauper, who, by their statute, has a right to appeal. Hence it is probable, that his resistance to a premature removal might save the necessity of raising the question by proof at the sessions. The analogy of other cases would seem to require, that the town, to which the pauper is sent by an exparte process, should somewhere have an opportunity to litigate every important allegation in the complaint and order; and one as much as another, if done in due season, and by a proper motion or plea.
It would be a total departure from this analogy to decide, that the fact of being chargeable, or likely to become so, should be the essential fact to give the magistrates jurisdiction, and, that they must adjudge this in the affirmative, and so certify, or their proceedings will be quashed for this defect; and yet decide, that the town to which the pauper is removed can never in any way dispute tliis fact, after they have notice of the order.
[127]*127The language of our statute attaches the same importance to this fact, as that of the English statute; and, so far as the argument of protection to the pauper’s rights should be weighed, it might seem more important here than there, because our statute gives the pauper no right of appeal.
This is the first case recollected, in which the”same question has been urged in the court appealed to in this state. It may be the first case in which it could be raised with plausibility. It may have been now raised upon a sudden failure of the de-fence upon the merits.
There seems at first view, no great hardship to the town wdiere the pauper has his legal settlement, for him to be sent home, even if he is not likely to become chargeable to any town.
But, upon reflection, the removing a man from his chosen residence, and disorganizing his v/hole plans of gaining a livelihood, and forcing him to reside in a given town, whether encouragement is, or is not there afforded for the pursuit of his particular calling, has a powerful tendency to reduce men to pauperism; while a free choice of the place, as well as the manner of each man’s pursuits, affords encouragement to industry, and facilitates the acquisition wealth.
But it must not be inferred, from what is now observed, that an order will be quashed upon any nice or difficult point in the weight of evidence. A man, whose means of subsistance are so scanty that he could not meet a day of sickness, of himself or famliy, without assistance from the town or from his neigh-bours, is likely to become chargeable within the meaning of the statute : and the town is not obliged to wait till he is become actually chargeable before they remove. Otherwise, of a man in profitable business, increasing in wealth, and already able to stem the torrent of adversity, which, by the way, is not seen approaching. If a case should arise so strongly marked as to afford presumption of unworthy motives in the overseers, and, perhaps, partiality in the magistrates who now may be inhabitants of the town from which the removal is ordered, it does seem-proper that, in such a case, the question should be revised at the instance of the town that is, or may be, affected by the removal.
The result of all this may seem to be, that the town of Bradford, after taking their appeal, would be admitted, in the form of a dilatory plea or temporary bar, to havm placed this question in issue, and driven the town of Corinth to produce the testimony called for on this trial. But, having interposed no such plea, they are now too late to avail themselves of this part of their, defence.
This, however, depends upon the view the court may entertain of the plea upon which was joined the issue that was tried by the jury.
The plea is, that the pauper was unduly removed; and does not proceed to assign any reasen why, or set forth any facts de-[128]*128signaling on what ground reliance was placed for defence- My brethren understand that this form of plea has been considerably in use; but we do. consider it a very defective form in which to present the rights of the parties for a decision. It is really simila£, in principle, to a plea in bar, which should say the plaintiff ought to be barred, and stop without assigning any reason for the bar. It must be considered a mere nullity, unless it should be considered, as now contended on the part of Bradford, a sort of general issue, putting upon trial all the material allegations of the order appealed from. There is much difficulty in this course. This plea is not a technical denial of any fact alleged in the order. And the mention of the fact of an undue removal in the seventh section of the statute, in no sense dictates the form or substance of the issue to be tried; but alludes to the determination of the court merely. Where the law is that the party recovering shall have execution for the sum recovered, it was never supposed that this would warrant a plea that the plaintiff ought not to recover. The defendant must plead a plea suited to his defence. The issue of non assumpsit denies the promise relied upon; not guilty denies the doing of the wrongful act complained of. A plea in bar of an accord and satisfaction, alledges what the accord and satisfaction are, so that the plaintiff may deny the same, and put directly in issue the matter in controversy. While a plea that the pauper was unduly removed, or that the plaintiff ought to be barred, or that the plaintiff ought not to recover, without adding more, so literally mean any thing the party would have them mean, that, in a legal sense, they mean nothing. The plea in the present case may literally mean, that Bradford was not the place of the pauper’s settlement, therefore he ought not to have been removed thither : or, he was not likely to become chargeable to Corinth, and ought not to have been removed thence to any place; or, in the act of removal, the officer was irregular and abusive to the pauper. And, as a decision upon this plea, reversing the order, might be made upon the merits of the settlement, it would be conclusive to discharge Bradford from the support of the pauper: for it would be presumed to have been decided upon the merits as laid down in 3d of Burns, page 502, South Cadbury vs. Braddon. It would not, therefore, be proper to admit a decision in favour of Bradford, upon this plea, unless upon evidence affecting the question of settlement. Indeed, it is not recollected that any other question than this has before been urged under such a plea. I can add, for myself, I have no recollection of ever before knowing of such a plea. Such language has been used concerning pleas in pauper cases, but I supposed the pleas designated the facts to be put in issue. Such was in fact the case in several pauper causes which I could name.
The discussion of this same cause, a year ago, was upon a point still further remote from the plea and the allegations in the complaint and order; a point in no sense attended to in either ; as may be seen from the case then decided, and from the [129]*129report of the decision. No circumstance drew the attention of the Court to consider the plea in reference to its extent to the different matters in the case not then litigated.
The Court being now called upon, for the first time, to consider this subject, we are disposed to make such a decision as, if followed, will point out a safe and convenient course of practice, that both parties may know for certainty what facts are put in issue by the pleadings, and prepare accordingly; and that any issue that may involve the merits of the settlement shall not be incumbered with any facts which might be the subjects of dilatory motions or pleas.
We therefore decide, that the question whether chargeable or likely to become chargeable, or not, may b¿ raised by the appellants in the court appealed to: hut that must be done by a motion to quash, or plea in bar exhibiting that fact as the ground of the interlocutory defence: that a plea to the merits should state, and rest upon the fact, that the town removed to was not the legal settlement of the pauper. That the plea in this case must, for the reasons before assigned, be considered a mere nullity; and had the verdict been returned for the defendant, on such a plea, justice would have required the court to award a repleader. That the decision of the county court was correct in not requiring of the appellees pro$f of dilatory matter upon an issue, the decision of which would be final upon the merits. But, instead of entering judgment on the verdict, we consider another course necessary, for the promotion of justice. The defendant put in this plea, supposing it settled by practice. The plaintiff supposing the same, did not object to receive the plea, nor demur to it; but joined the issue presented by the plea. The plea, denying nothing that was alleged, but almost equally denying every supposal in the complaint and order, the appellants might consider it as a sort of general issue, and rely upon the point urged, and may have made their preparation accordingly. We will not, therefore, surprise the defendants by an important change in practice, without an opportunity to plead anew, and present such facts as they have before supposed were in issue. If the defendants choose thus to withdraw their plea, and plead anew such facts as we have now considered, they have leave to do it, making their election forthwith. In which case, the verdict will be set aside, and the cause will stand for trial upon the new pleadings.