Wheelock v. Lyndon

The opinion of the court was delivered by

Mattocks, J.

— Two questions were raised in this case by the bill of exceptions, one of which has been abandoned here; and the only point remaining to be decided is, as to the validity of the warning, which was in these words :

“State of Vermont. Caledonia, ss. To Jude Kimball, constable of the town of Lyndon, greeting: These are in the name of the authority of the state of Vermont to require you ■to notify and warn William Miles to remove himself off and out of the town of Lyndon, and also to return this warrant into the town of Lyndon, with your doings herein, in twenty days from this date. Given under our hands at Lyndon, this 24th day of November, 1806.

ISAIAH FISK,

ABRAM SMITH,

WM. WINDSOR,)

Selectmen of Lyndon.”

The form prescribed by the act of 6th November, 1801, under which Lyndon warned, is in these words, to wit:

“State of Vermont. --ss. To either constable of A. in the county of B. greeting: You are hereby required to summon C. D. now residing in A. to depart said town. Hereof fail not, but of this precept and your doings herein, due return make according to law. Given under our hands at A.-day of-, A. D. 18. J

E F

q" n'

I.’ K.’

Selectmen of A'

The first section of the act is, “ That whenever any person or persons shall come and reside within any town in this state, the selectmen may at their discretion warn such person or persons to depart said town, which warning shall be directed to either constable of said town, and be in the following form, viz:” There are several departures in the warning used from the warning prescribed. First, it is directed to Jude Kimball, constable of the town of Lyndon, and not to “ either constable of the town.” 2. The words, “ These are in the name of the authority of the state of Vermont,” are an entire interpolation. 3. “Notify and warn” are substituted for “summon.’’ 4. “ Now residing in A.” is entirely omitted. 5. The words, “ to remove himself and family off and out of the town of Lyndon,” are substituted for the words, “ to depart said town;” and in lieu of.“ hereof fail not, but of this precept, with your doings herein, due return make according to law,” is inserted, £‘ and also to return this warrant into the town of Lyndon, with your doings herein, in twenty days from this date.”

Thus it is seen that the readings are so unlike that no parallel can be run between them. But the ingenuity of the counsel has shown that a paralogism may be made upon them, and it is evident that in forming this warning, the statute form was not only recast, but different ingredients were added to the composition, which have not increased its perspicuity. The common law supposes it not good to depart from the registrar, wherein it is said every man who is injured will be sure to find a method of relief, exactly adapted to his own case, desribed in the compass of a few lines ; and yet without the omission, of any material circumstance. And more dangerous is a departure from statute forms, and most of all in cases of this sort, that are structi juris, where the law is made to create, not to protect, a natural or equitable right. In such case, form is substance, and is not like matters of contract, which the law merely regulates, where doing something tantamount may sometimes be regarded as performing the thing stipulated. It does not appear from the cases cited, that the question as to confer-. mily in the warning has arisen, but in several cases the service has been required to be in strict accordance with the statute ; ~ and it is not perceived why the principle of the requirement does not apply with equal force to the warning, as nothing is waived or cured in these cases, as objecting to its sufficiency on trial by the town affected is the first and only mode of testing its validity; and it is quite obvious, that nothing short of abrogating the statute form will entitle this warning to stand in its place, as the discrepancies are so numerous; and if a single and slight variance might be winked at, yet the law must be hoodwinked not to see these many potent defects. Some prominent ones have been cited by the plaintiff, to wit: — “ notify and warn,” which have no technical meaning, are used for “ summon,” which has. 2. “ Now residing in said Lyndon” is omitted, which is a material fact, without which the selectmen had no authority to issue the warning, and which fact the law requires to appear in the process, and also to distinguish him from any transient person of the same name that might happen to be in town. Summons in the English law is as much as citation among the civilians, (Fleta Lib. 5, ch. 6,) and has long been used in England and here as a term of art. But neither notify nor warn are such — they are not to be found in “ Les term,es de La Ley,” nor in any modern books of this sort; and the words “ off and out” are too inexplicit as well as too outlandish to be permitted to be foisted in, in lieu of and making the decent words, “ now residing,” give place. And although the two uncouth words might imply that the pauper was at the moment in and on the town, yet by no necessary implication even that he then resided there; and if we allow the proper meaning of the term removal, connected with “ out of the town of Lyndon,” that neither would be an affirmation that he had come to resjde there. The supposed meaning of the word would be gratuitous, if correct; for the law does not require that, he should depart to the place from whence he came. But it does not mean, as defined in the brief, to return back — it means to change place. Me, when placed before move, loses its latin meaning. We consider that the warning was so wide a departure from the form prescribed by law, that it cannot be considered as a compliance with the law; and therefore the warning out did not prevent William Miles from gaining a settlement at Lyndon.

Judgment of county court reversed.