Bloodgood v. Overseers of the Poor — 12 Johns. 285

Majority

p. 285

Bloodgood, one of the Overseers of the Poor of Flushing, against the Overseers of the Poor of Jamaica.

Headnote

If the defendant in ajustice’s com-t* tafe^an el° S'TnstLcej a06011?1' °f the variance between the process and declaration, but takes issue, and goes to trial on the merits, it is a waiver of all objection to the process or pleading.

A constable who is an inhabitant of a town, and pays taxes to support the poor, is a competent witness in a suit brought by the overseers of that town against the overseers of another town, relative to the settlement of a miner.

IN ERROR, on certiorari, from a justice’s court.

The defendants in error sued the overseers of the poor of Flushing by a summons, in common form, against-both of them, (viz. Samuel II. Van Wyck and Daniel Bloodgood,) in a plea of debt for 25 dollars. The summons was returned personally served upon both the defendants; and on the return ^ r ■ day they both appeared.

p. 286

The overseers of the poor of Jamaica then declared against Daniel Bloodgood only, for the penalty of 25 dollars, for refusing to receive paupers upon a warrant of two justices of Jamaica, according to the I Ith section of the act for the set- ■ tlement and relief of the poor, passed in April, 1801. (1 R. L. an(j p, 569.) The penalty is given, by that law, against the overse.ers of the city or town, or any or either of them so refusing; and is to be applied towards the support of the poor of the other town.

To this declaration, Daniel Bloodgood pleaded the general issue; and no further notice was taken, in any part of the proceedings, of Van Wyck, the other defendant below.

The proof applied to Bloodgood only, and fully established the claim of the plaintiffs below. The justice, accordingly, gave judgment against Bloodgood, for 25 dollars, and the costs.

The exceptions taken to the justice’s proceedings were, 1st. The incongruity between the summons and the declaration; the process being against two defendants, and the declaration against ope of them only.

2d. That the justice (notwithstanding an objection) admitted, as a witness for the plaintiffs below, the constable of the town of Jamaica, who removed the paupers, and who was “ an inhabitant of that town, paying taxes for the support of the poor.”

The case of Day v. Wilber, ( 2 Caines' Rep. 134 .) and the uniform decisions since that time, have established the rule, that if the defendant neglects to take his exception to the first process, but joins issue upon the declaration of the plaintiff, in the court below, upon the merits, he is deemed to have waived all objection to the process, and the cause stands upon, the same footing as though the parties had voluntarily joined issue, and gone to trial without process.

Upon the 2d point, the decision in the.case of Falls & Smith v. Belknap, ( 1 Johns. Rep. 476 .) is in point against the plaintiff in error. It is true, that the penalty, if recovered,, is to be applied for the support of the poor of the town in which the witness is liable to be taxed for that object; but such an interest is too remote and contingent to exclude the witness.

Judgment affirmed.