Town of Andover v. Town of Mount Holly

58 Vt. 372

• Court: Supreme Court of Vermont
• Decided: February 15, 1886
• Status: Published

Opinion

The opinion of the court was delivered by

Royce, Ch. J.

This is an appeal from an order of removal of a pauper. The order sets forth the substantive facts upon the finding of which it is based, viz.: That the pauper “has come to reside in” and “is chargeable to said town of Andover,” and that he “ has his legal settlement in said town of Mount Holly.” The concurrence of these facts is necessary to support the order of removal. R. L. ss. 2833, 2834. The failure to sustain the finding of either of said facts by the justices, on appeal, would result in the quashing of the order. The order of removal, therefore, comes up to the County Court as the statement of facts upon which the appellee bases the right to a judgment. It is in substance the same as a declaration; it is the formal allegation of the facts necessary to make out the right of the party presenting it to the judgment he seeks to obtain. We can see no reason why the common-law rules should not be applied to the pleadings of which this order is the beginning, and such, we think, has been the doctrine and practice in this State, as is indicated in the cases referred to in Roberts’s Digest, p. 517.

As the omission of either of the substantive facts, i. e., that the pauper has, or is likely to, become chargeable to one town, having come to reside therein, or that his legal settlement is in the other, would necessarily make the order fatally defective; so a plea putting either of those facts in issue would present a complete defence. The single plea of tlie appellant in this case tenders issue' upon the fact that the pauper had become chargeable, and also the fact of his legal settlement. The two are entirely independent and have no connection with, or-relation to, each other, by all the rules and tests of common-law pleading; the plea is therefore bad for duplicity. 1 Chit. Pl. 230, 512; Gould Pl., c. 8, ss. 1, 4, 19; Luce v. Hoisington, 55 Vt. 341.

It is obvious that this conclusion must result from the application of a very common test of duplicity — the question, do the two things pleaded require different answers? — but in addition to this we have the decision in Corinth v. Bradford, 2 Aik. 120, which assigns them to different classes of pleas, holding that the issue whether chargeable, or likely to become chargeable, should be raised by motion to quash of plea in bar, while that of the legal settlement is .the subject of the proper plea to the merits.

The third and fourth grounds of demurrer are not sustained, as the matter referred to would be treated as mere surplusage; but upon the first and second grounds the judgment sustaining the demurrer is affirmed, and cause remanded with leave to the appellant to re-plead on the usual terms.