The opinion of the court was delivered by
Davis, J.This was an appeal from an order of removal of one Mehitable Smith from Sutton to Cabot, made October 22, 1845. Two pleas were interposed by the defendants in the county court, —one of which was the usual plea to the merits, that the pauper’s last place of legal settlement was not in the town of Cabot. This issue was found against the defendants; and, so far as regards the last place of legal settlement, no question is presented for this court to pass upon.
A farther plea, however, was interposed, to the effect, that the pauper had not come to reside in the town of Sutton, within the true intent and meaning of the fourth section of the Revised Statutes, relating to the support and removal of paupers, and so was not subject to the process of compulsory removal adopted in the case. Issue was taken upon this plea, also, and was found in favor of the defendants. The plaintiffs’ counsel objected to this plea, as containing matter which could not be insisted upon by way of plea; but that, if available in any way to defeat the order, it could only be presented by a motion to quash the proceedings for that cause.
It is not easy to understand on what principle such a distinction can be sustained. Granting.that it could be presented in the mode proposed, — and I am inclined to think, notwithstanding it puts in issue new matter, not apparent of record, that it might have been so presented, — it by no means follows, that it could not also have been done by plea, as in this case. Should it be farther conceded, that the subject matter is of a nature merely dilatory, not affecting the final merits, it is not perceived how that circumstance excludes the right of presenting it by plea. Matters in abatement, or temporary bar, constitute as proper subjects for a plea, as those of a different character.
*525The effect of a verdict against the plaintiffs, however, may be quite different, according to the nature of the questions determined by it. The distinction is of no practical importance in this case, as the pauper has deceased. The verdict determined, that her legal settlement was in Cabot, but, at the same time, that she was only transiently in Sutton, and, though needing relief, was not subject to removal. The plaintiffs were doubtless entitled to reimbursement for their expenditures; but a removal was neither necessary, nor allowable.
The counsel for the plaintiffs have urged, that the present revised code, by the enactment in the third section, making it the duty of the overseers of the poor of the several towns to provide for the' comfort and relief of all persons residing in their respective towns, when in distressed circumstances, though having no legal settlement there, until they can he removed, has extended the right of removal to transient persons, as Well as those who have come to reside, as provided in the fourth section. This is a mistake. The third section of the old code and the fourth section of the new one are substantially, alike, and require a similar construction; and nothing in the third section of the new code can have any effect in modifying that construction.
The judgment of thé county court is therefore affirmed.