The opinion of the court was delivered by
Bennett, J.The only point in the charge of the court, material to consider, is the instruction given by them, that the plaintiff was entitled to recover of the town for supporting and nursing the pauper, and necessaries furnished her, only to the amount of five dollars. This court are unanimous in the opinion that, in this, there was error, and for this cause the judgment of the county court should be reversed. This action having been brought for services rendered before the repeal of the 20th section of the act of 1797, relating to legal settlements and providing for the poor, is of course to be governed by the law then in force. In Ives v. Wallingford, 8 Vt. R. 224, it was held that the overseers of the poor of a town could not bind the town for the support of a pauper, having a settlement therein, beyond the sum of five dollars, without an order from a justice of the peace, in pursuance of the 20th section of the act. The only question is this; is this a case, from the facts detailed in the bill of exceptions, which requires an order from a justice, in order to render the town liable beyond the sum of five dollars. The poor in a *137town may all be embraced in one of three classes; such as have a settlement in the town ; such as come to reside in it, and the transient poor, who are for the time being in the town. No question can arise whom it was the intention of the legislature to embrace in the first class. The second class embraces such as come to reside in a town in the ordinary way, and under such circumstances, and have such a residence, as, if continued for the requisite time, would consummate a'legal settlement. All others fall within the class of transient poor.
The case shows that this woman was brought into Alburgh, by some person unknown, from across the lake, and left at the house of a Mr. Sowles, sick and in need of relief, and that she was immediately provided for by the overseers of the poor of the town. It is evident that this pauper was transported into the town of Alburgh with an intent to render the town chargeable with her support,'or, at least, the evidence tends to prove it, and if so, so far as the question now before the court is concerned, it is the same thing. In no point of view does she come to reside in the town in such a sense as to fall within the second class of poor. She has but a naked commorancy, a simple being within the town and this brought about without her agency, and probably against her will. We are all agreed that she must be regarded as one of the transient poor, falling within the 11th section of the statute. The question then returns, does the case of a transient person, coming within the 11th section of the statute, also fall within the 20th section, and require an order from a justice of the peace ? I think not. The words of the 20th section are, ‘ if any poor person belonging to any town or district within this state shall apply for relief,’ &c. It would be, I think, a forced construction of language to hold that transient paupers belong to the town into which they may be thrown. The obvious meaning of the term does not include such, and there is no reason why it should have a straightened construction. The term is satisfied by including such poor as have a legal settlement in the town, and such as come to reside in it, in the ordinary way ; and with this the court should be content. The majority of the court now present concur in this view; but one of my brethren (Judge Collamer,) is of the opinion that cases falling under the 11th *138section, as a general rule, should also be brought within the 20th section; but, in this case, inasmuch as the account of the Pontiff had been adjusted and allowed by the committee of the town, and their report accepted by vote of the town, and provision made for the means of payment; and the town had made the claim of the plaintiff the basis of a demand in their favor against Randoph, and had sued Randolph and received satisfaction ; it is, he thinks, now too late for Alburgh to assume, as^a ground of defence, the want of an order»
The judgment of the county court is reversed.