Overseers of Poor of Town of Newbury v. Overseers of Poor of Town of Brunswick

• Decision Date: 01 February 1829
• Citation: 2 Vt. 151
• Parties: OVERSEERS OF THE POOR OF THE TOWN OF NEWBURY, Ap'lees, v. OVERSEERS OF THE POOR OF THE TOWN OF BRUNSWICK, Ap'lnts
• Court: Vermont Supreme Court

2 Vt. 151

OVERSEERS OF THE POOR OF THE TOWN OF NEWBURY, Ap'lees, v. OVERSEERS OF THE POOR OF THE TOWN OF BRUNSWICK, Ap'lnts

Supreme Court of Vermont, Orange

February, 1829

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This was an appeal from the order of Ephraim B. Stevens and Charles Hale, Esquires, Justices of the peace for the County of Orange, made upon the complaint of the Overseers of the Poor of the town of Newbury, for the removal of " Nathaniel P. Harriman, his family and effects," from said Newbury to said Brunswick. This cause was entered in the County Court, June term, 1827, at which term the appellants filed a motion to quash the order and proceedings of said Justices, for generality with regard to the word " family:" and the County Court decided that said proceedings be quashed as to the family. To which decision the appellants excepted; and the cause was continued to December term, 1828; at which time the parties agreed to the following statement of facts, for the purpose of obtaining the judgment of the Supreme Court:

" That previous to the 7th day of September, 1807, Nathaniel P. Harriman and Lydia Page, being citizens of Vermont, went into Stanstead, in the Province of Lower Canada; and, on the day last aforesaid, before one Phinehas Hubbard, then a Justice of the peace in said Province, covenanted and agreed, each with the other, to be and remain husband and wife. In consequence of there being no clergyman present, authorized by law to solemnize marriages, this method was adopted; and said Justice made a record of the same, but did not declare said Nathaniel P. and Lydia husband and wife; but informed them that he had no legal authority to solemnize marriages. The said Nathaniel P. and Lydia have from said 7th day of September, 1807, to the time of said order of removal, cohabited together as husband and wife; and, if the testimony of said Lydia is admissible to that point, it is also agreed that no ceremony of marriage has ever been had between them, other than the one before said Justice Hubbard. In June 1808, the said Harriman and Lydia moved into the town of Brunswick, in this State, and continued to reside therein three years next following, without having been warned out; and have ever since resided in the United States. Some time previous to September 8th, 1826, the said Harriman and Lydia, with their children, to wit, Polly, aged 16 years, Sally, aged 9 years, Job, aged 5 years, and James, aged 3 years, came to reside in the town of Newbury; but have never gained a settlement therein. On the said 8th day of September 1826, the said Lydia being sick and in need of assistance, and said Harriman being destitute of property and unable to support her and the children, the overseers of the poor of Newbury, on application of Harriman, furnished the said Lydia with necessaries, and expended monies for her support, and some of the aforesaid children; but none for the personal support of Harriman. It is also agreed, that on the 7th day of September, 1807, the statute of 26th Geo. II. was the only law in force in said Province regulating marriages. On the 22d day of March, 1825, an act of the Provincial Parliament of said Province was passed, which declares all marriages, before that time had or solemnized by any Justice of the peace, good and valid in law, & c. If the Court are of opinion, from the facts herein set forth, that said town of Brunswick are liable, then judgment is to be rendered in favor of said town of Newbury. Otherwise, judgment is to be rendered in favor of the said town of Brunswick."

Judgment for appellees.

Cushman and Marsh, for defendants.--According to the latest decisions of this Court there seems to be no use in saying any thing of the family in an order of removal, and when that expression is inserted, is there any propriety in, or effect from quashing the order as to the family? For it is clear from all the cases in the books, and from our own decisions, and from the reason of the thing, that if an order were made, and remained not appealed from, directing a man and his family to be removed from such town to such a town, it would not determine the settlement of any one, except the man, his wife and children; and no case is to be found where any greater effect was given to such order. And it is equally clear, that if the order be quashed as to the family, or this expression was not originally inserted in the order, yet if the order remove the man only, still it determines the settlement of his wife and children. And this is settled doctrine both here and in England. It is believed that all the difficulty which has been made in England and here respecting the use of this expression, and quashing the order in part on that account, is worse than useless. We are aware that it has been said, and orders have been quashed, as to the family, on that account, that it might affect the settlement of servants, or of children of the wife by a former husband; but still no decided case goes any further than that removing the man decides the settlement of his wife and children. And removing the wife or widow of a man, decides also the residence of the husband and children. The whole sum and substance of the doctrine to be elicited from the decided cases on this subject is, that wherever the husband or father is by the order decided to be settled, there the legally married wife and their children, (that is, the children of the husband,) have derivatively their settlement also. And where the order is for the removal of the woman, and such expressions are used in the order that the Court must suppose that the validity of the marriage came in question, and was adjudicated on, and no appeal is there taken, it determines not only the marriage, but of course the settlement of the husband and children also. Rex v. Buckswell, 2 Bott, 74.--Burr. S. C. 168.--Rex v. Luffington, 2 Bott, 74.--Henly v. Chesham, 2 Bott, 81.--Rex v. * * *, 2 Bott, 75.--Burr. S. C. 551. And the reason is that it is res judicata; and the question cannot be again inquired into. But the removal of a man, or a man and his family, decides nothing only the settlement of the man, and those who derive their settlement from him. And the removal of the wife or widow of such an one does the same, that is, it is supposed to remove the wife or widow of such an one, because she is or was his wife, and, therefore, derives her settlement from him, and, therefore, his settlement and the marriage must have been adjudicated on. And it alike determines the settlement of his children. But such a removal determines nothing as to the settlement of their servants, or the children of the wife by a former husband, because, inasmuch as the servant does not derive his settlement from the master, or the child from his father-in-law, the settlement of such does not come in question--nor would it any more, it is believed, if the word " family" were used in the order. Nor is it believed that any case can be found where it has been decided, either here or in England, that using this word " family" in an order would have this effect.

The question intended to be submitted by the parties in this case is, whether marriage in Canada, as it is stated in the case, determines the settlement of the pauper, Lydia Page, (or Harriman,) and her children, as deriving it from Nathaniel P. Harriman, the supposed husband and father? And this depends on the validity of the marriage. If the marriage is void, the woman is yet single, and the children illegitimate: and tho' she may have acquired a settlement in Brunswick, in her own right, by three years residence there, and the children by being born there, yet neither the woman nor children can be affected by the order of removal, not being named in the order otherwise than as the family of Harriman. The order was made on the ground that Harriman and his family had become chargeable to Newbury But the case admits that Harriman had not become chargeable, and it is agreed that the woman and children had become chargeable. The order then must be affirmed or reversed wholly on the ground of the legality or illegality of the marriage ceremony, as stated in the case, which took place in Canada. It is admitted that the act of parliament of 26 Geo. II. commonly called the marriage act, was in force, and the only law in force, on this subject, at the time this ceremony took place, and so continued till the year 1826. But it is clear, then, that the marriage was void, not being in conformity to any existing law from the time it took place till 1826. 2 Bott's Poor laws, 65, et seq. In the King v. Luffington it was decided " that a marriage contracted previous to the marriage act, if the ceremony was not performed by a priest in holy orders, and in facie ecclesiae, was null and void, and no settlement can be gained by the woman under it." 2 Bott, 74.--Burr S. C. 232.--1 Wils. 74. In the King v. Hodnet it was decided " that a marriage between two infants by means of a procured license, and without consent of either parents or guardians, is void by the Stat. 26 Geo. II. c. 33, altho' both parties are illegitimate, and no settlement can be gained under it." This is cited to show with how much strictness the marriage act was construed in England.

The question must then turn on the validity, or rather the effect of the act of the provincial council or parliament of 1826. Whatever may be regarded as the effect of the act in the province, it is certain it can have no effect here. These parties never were citizens or subjects of the province. They were on 7th Sept. 1807, citizens of Vermont, went into the province at that time, had this pretended marriage, and came back in the next June after, and...