Adams & Barnum v. Foster & Lawrence

delivered the opinion of the Court.

The order of removal was made under the seventh section of the act; but it never was carried into effect. As the pauper died, before notice of an appeal, it appears to me the town of Dicleenson was not aggrieved, and, therefore, the order could not be the subject of an appeal. There could be no grievance to the town, to which the order of removal was *455made, until it was executed. It is evident, that the overseers of Bangor intended to abandon the order; for, two days after it was made, they gave notice under the sixteenth section of the act, requiring the overseers of Dickenson to provide for the pauper as a sick person, unable to be removed. It is true, they served a copy of the order of removal with the notice, but this was of no avail; the respondents were not bound to take notice of it. If it is considered as an adjudication, which the overseers of Bangor might adopt, as laying the foundation for a warrant to distrain and sell the goods and chattels of the overseers neglecting to provide for the pauper, still an appeal was premature. No steps have been taken by Bangor to compel payment, and, non constat, that they ever will take any. The town of Dickenson has never been aggrieved on this account. Whenever the town of Bangor takes measures to enforce the payment for expenses incurred, hy warrant, then an appeal will lie; but not before. Putting the order out of question, it will not be pretended, that an appeal would lie from the notice merely; for, although the statute directs a notice, yet, it presupposes an adjudication, as to the settlement, to be made before a warrant issues to compel payment. (Voorhes v. Whipple, 7 Johns. Rep. 94.) On the preceding grounds the appeal ought to have been dismissed.

But admitting the appeal was properly before the Court, was the settlement of the pauper in Bangor ?

The town of Dickenson was divided, on the 15th of June, 1812 ; previous to that time, it included the territory, which constitutes the present towns of Dickenson and Bangor. Cyrus Potter, the pauper, was twenty-one years old in September, 1819 ; he was the son of Andrew Potter, and never gained a settlement for himself.

In 1811, the pauper’s father resided on a farm in that part of Dickenson which is now included in Bangor, and was assessed in that year, and paid taxes. After the division of the towns, he continued in Bangor, and, in 1815, was assessed, and paid taxes. In 1816 he removed to Dickenson, was there assessed, and paid a tax, in that year.

On the 23d of July, 1816, Andrew Potter executed to the pauper a writing for the consideration of 50 dollars, where*456by be released all claims to his services until the age of twenty-one. At this time, the pauper lived with one Clark. He afterwards went to Vermont, where he remained upwards of two years; then returned to Dickenson, where he remained a few weeks. After this he returned to Vermont, and came back in 1819, and boarded with his brother, sX Bangor, until 1821, when he became chargeable to that town. After the execution of the writing he never resided with his father, nor returned to his house, except, a few times, on a visit, when he remained a day or two, at a time.

The pauper’s father gained a settlement in Dickenson, having been assessed and paid taxes in that town for two years. The eleventh section of the poor act, directing the manner of dividing the poor, and by whom any poor person, who has gained a settlement, and becomes chargeable, shall be supported, does not affect this question; for the father did not gain a settlement until after the division of the town of D. The instrument relied on as an emancipation, is a nullity. The father could not, by such an act, devest the right of a derivative settlement. The cases in which an emancipation takes place, have always been decided on the circumstances of the son’s heing twenty-one, or married, or having gained a settlement in his own right, or, as in the case of a soldier, having contracted a relation which was inconsistent with the idea of his heing in a subordinate situation in his father’s family. (3 Term Rep. 356. Rex v. Wilton, Burr. S. C. 270. 1 Strange, 438. 831.)

We are, therefore, of opinion, that the pauper was settled in Dickenson, and that the order of the Court of Sessions be reversed.

Order of Sessions reversed,.