Majority
p. 530The People against the Supervisors of the County of Cayuga.
Headnote
An order removing a pauper, appealed from, and abandoned by the town who remove, who consent to take back the pauperwithout trying the appeal, is not conclusive as between that town and the county.The latter is not protected by it from maintaining the pauper as one having no residence in the state.
Where a magistiate makes an order to maintain a 4>auper as a non-resident of this state, and unable to be removed, this it seems is conclusive upon the board of supervisors.
An alternative mandamus had issued to the defendants commanding them to allow to the overseers of the poor of the town of Aurelius, in the county of Cayuga, the expenses of supporting four paupers, which were claimed to be a proper county charge, on the ground that they had no settlement in this state.
In their return, the defendants, without denying that the expenses had been properly incurred under the order of a magistrate, pursuant to the 25th section of the act for the relief and settlement of the poor, (1 .R L. 287,8,) stated that the overseers of the poor of Aurelius, had procured an order for the removal of the paupers to the town of Farming-ton, in the county of Ontario, as their place of legal settlement, which order was executed by a removal of the paupers to the latter place; that the overseers of Farmington having appealed from this order to the General Sessions of the Peace of Cayuga, the overseers of Aurelius took back the paupers, and supported them, but neglected to try the appeal; that they rejected the application of the overseers of Aurelius, on the ground that until the order of removal was reversed, the paupers must be adjudged legally settled in Farmington.
The return also stated that a second application to the Supervisors, to allow the expense of these paupers, had been rejected, not only upon the ground above stated, but also on the ground that one B. a convict in the state prison, had been examined on oath, before the justice, and swore that the paupers had no fixed place of settlement or legal residence.
On this return it was submitted whether a peremptory mandamus should go.
The first question upon the return is, whether the order, which was withdrawn, is to be deemed tor.clusive as to the settlement of these paupers.
p. 531
Whatever the effect might be as between Aurelius and Farmington, there cannot be a doubt as between Aurelius and the county. Here was an order of removal, which the parties abandoned by mutual consent. It was like a party’s giving up a judgmént intended for his own benefit. As to third parties, it threw the question entirely open, to be settled upon its merits whenever it should arise; and this was so held in Rex v. Inhabitants of Llanrhydd, (Burr. Sett. Cas. 658.) The order was deserted.
Whether the convict was or was not examined, does not appear from the return to have been material. For aught that appears, there was other and competent evidence on the subject, and we will intend that there was such evidence till the contrary appears. Besides, could the question be raised collaterally, by the board of Supervisors ? It had been passed upon by a magistrate. Could his adjudication be questioned till regularly set aside ? This we are by no means prepared to accede.
The return is insufficient, and a peremptory mandamus must go.
Rule accordingly.