482

TRUSTEES OF JEFFERSON TOWNSHIP V. TRUSTEES OF LETART TOWNSHIP.

Nye, in support of the motion.

Opinion of the court by Judge HITCHCOCK.

This action was brought by the plaintiffs to recover the amount of monies expended in the support and removal of Edmund Jackson, a pauper, charged to have been legally settled in the township of Letart. It is different from the case of Wayne v. Stock Township, decided at the present term, in one particular. In that case the pauper is supposed to have been of full age; in this he is admitted to have been an infant under the age of twenty-one years. Whether this can make any difference, or whether such an individual can by his own residence, merely, gain a legal settlement, is the point to be determined.

The 4th section of the act for the relief of the "poor," speaks of " any person or persons" &c. in general terms without reference to age or sex. Indented servants, legally brought into the state, and married women are expressly provided for, but nothing is said about infants or children. It is perhaps a misfortune that the statute is not more explicit. Still we apprehend that there is no difficulty in arriving at the intention of the Legislature. We have no doubt it was understood and intended that the legal settlement of children should follow that of their parents. It is not believed that by the word "person," as used in this section of the statue, any other person was intended than such as have ar. rived at the years of discretion. Such as, so far as age is concerned, were capable in law of contracting and being contracted with. Such as have a legal right to remove from place to place, and were free from the superintending control and guardianship of others.

Το prove the correctness of this construction of the statute, nothing more is necessary than a consideration of the absurdity to which we should be held by a different decision. If the legal settlement of the child does not follow that of the parent, it might and frequently would so happen that the legal settlement of the child would be in one place, while that of the parent would be in another. And a case might be presented where there are many children, that the settlement of the parent and each one of the children would be in separate and distinct townships. Will it be for a moment believed, that such is the policy or meaning of the law? If such is the law, children of the same family in their tender years, may be separated from their natural guardian, the parent, and from each other, and a statute which is entitled, "" an act for the relief of the poor," may be made to operate most oppressively upon that class of the community.

An examination of the other parts of the same 4th section of the act, will tend to fortify the construction of the court," any person or persons residing one year in any township in this state without being warned," &c. Now the warning pre-supposes that the person warned has a legal power or right to leave the township. But what right has an infant to remove? Does the law authorize such an individual to abandon or leave his father? The parent is bound both by the laws of nature and the laws of the land, to provide for and take care of his infant child, and in return is entitled to the services and control of the child. This rightis so perfect, that unless, in extraordinary cases, it cannot be interfered with. Let it not be said that this is one of those extraordinary cases. The legislature have not in this section of law undertaken to interfere as it respects

the relative duties and rights of parent and child. It must be remembered that the overseers of the poor are not to wait until a person becomes chargeable before they warn him to depart. The apprehension that he may at some future, period become chargeable, is sufficient to justify, nay to require of them the performance of this duty. If then the warning pre-supposes a right in the individual concerned to remove from the township, it follows of course, that an infant cannot with propriety be warned, because the infant has no legal right to remove, where such removal would separate him from or place him beyond the reach of his natural guardian. Inasmuch, then, as the overseers of the poor cannot with propriety warn an infant to depart the township, it would be unjust to say that the infant by residence, merely, shall gain a legal settlement.

In the case before the court, the pauper, it is true, at the time he went to reside in the to township of Letart, had no father living. This however cannot vary the case. Samuel Jackson, the father, was last legally settled in the township of Lebanon. In virtue of the settlement, Edmund Jackson, the son, was legally settled in the same place. By no length of residence in any other township, previous to arriving at the age of twenty-one, could he gain any other legal settlement. Having been reduced to poverty during his infancy, the township of Lebanon was chargeable with his support.

Under this construction of the statute, the question reserved must be decided in favor of the defendants, and in pursuance of the terms of the agreed case, the verdict of the jury must be set aside and judgment entered against the plaintiffs.

COMMISSIONER OF INSOLVENTS v. WAY, ET AL.

A bond of an Insolvent debtor is valid, though it does not in terms follow the statute. When the commissioner of Insolvents fails to advertise, and the party appears at a subsequent term in good faith, and obtains a discharge, the condition of the bond is saved; though a specified term for his appearance be named in the condition.

It is the duty of the commissioner to cause the proper advertisement to be made.

This was an action of debt upon a bond given by the defendant Way, and the other defendants, to the Commissioner of Insolvents. The condition inserted, was, that Way, who was the applicant for the benefit of the insolvent act, should "appear at the next May term, of the court of Common Pleas, of Belmont county, and not depart without leave." The declaration set out the bond and the condition, and alleged as a breach, that the defendant, Way, did not appear at the next May term, &c. The defendants demurred to the declaration, and also pleaded five special pleas, which were put to issue also, on demurrers, replications and rejoinders, which it is not material to state. The object of all the pleas, was to present for decision this fact, that the commissioner of insolv. ents, did not advertise the application to be made at the May term, but did at a subsequent term, when the defendant, Way, appeared, complied with the requisitions of the law, and obtained the certificate under it. The case was adjourned here for decision from Belmont county.

Genin and Kennon, for the defendants.

Goodenow and Hubbard, contra.

Opinion of the court, by Judge HITCHCOCK.

The bond which is the foundation of this action, was given pursuant to the requisitions of the "act for the relief of insolvent debtors," passed the 23d of February, 1824. The 8th section of that act relates to those, who are arrested or are in custody, upon mesne or final process. Of such persons a bond is required, the condition of which is specific in the law, and the bond now in suit, was intended to be in compliance with this requisition. The condition does not literally conform to the statute, inasmuch, as the statute requires it to be that the insolvent shall appear at the term of the court, at which the application for the benefit of the act may be made, whereas, the condition annexed to this bond, provides for the appearance of the defendant, Way, at a specific term of the court of Common Pleas, viz: "the next May term, and that he shall not depart the court without leave." This variance, however, is not so great as to invalidate the bond. It is not material. The "next May term" of the court, was the term at which the application for the benefit of the insolvent act, should regularly have been made. In fact I incline to the opinion, that the specific term of the court, at which the insolvent is to appear, should in such cases be named. Without determining this point, however, it is sufficient, for the purposes of the present case, to say, that by the execution of this bond, the insolvent, substantially complied, so far, with the law.

Whenever the legislature undertake to act upon a particular subject, and in the course of legislation, deem it necessary to require the execution of a bond, specifying the condition to be annexed to such bond, it is impossible correctly to settle the rights of parties, originating in or growing out of such bond, unless we look to the whole law, and ascertain specifically, the intention of the lawmaking power. In fact, the bond becomes a part of the law, and must be construed in connexion with it. The object of the legislature in requiring a bond from the insolvent debtor, was to secure the party at whose suit the insolvent should be arrested, against any fraud which might be practised by a defendant, in attempting to release himself from arrest, under the pretence of taking the benefit of this act. If the insolvent acts with good faith, and either obtains a certificate of discharge, or surrenders himself a prisoner to the proper officers, the bond, to use the words of the statute, "is cancelled." In other words, the insolvent by obtaining a certificate of discharge, or by surrendering himself to the proper officer, substantially complies with the condition of his bond, and discharges himself, and his securities from liability.

Way, the defendant, did not appear at the May term of the court of Common Pleas, as he was bound to do by the letter of the condition of his bond. If the bond stood alone, and was to be considered without reference to the statute, under which it was executed, here was a breach of the condition; the bond itself become absolute, and the liability of the defendants is fixed. Under the impression that this is the legal effect of the non-appearance of Way, at that term of the court, this suit was commenced.

The defendants however, undertake to excuse themselves, and after demurring to the declaration, have filed several pleas in bar. The fourth of these pleas is the one to which the attention of the court has been principally turned. To this plea there is a general demurrer, and the question is as to its sufficiency. This plea alleges in the first place, that the commissioner of insolvents, did not, previous to the May term, 1826, at which the defendant, Way, was bound to appear, give the necessary notice required by law, of his intention to apply for the benefit of the insolvent act. It is to be observed that the notice not having been given, the application could not be made, of course the appearance would have been nugatory. If under these circumstances Way and his securities are made liable, it is not so much on account of any neglect of his, as on account of the neglect of a public officer. It is the duty of the commissioner of insolvents, to give notice of the intention to make application for the benefit of the act. I am aware that an attempt has been made in argument, to show that this is the duty of the insolvent; but the court think otherwise. The 4th section of the act provides that this shall be done by the commissioner, and there is no other provision of the law expressly interfering with this. To subject third persons to a penalty in consequence of the neglect of a public officer, is not consistent with justice; still we do not undertake to say, that had the plea stopped here, it would have been sufficient.

The plea however alleges, that subsequent to this, to wit: after the May term, and before the September term, 1826, notice was given that the defendant, Way, would make his application at the September term, and that Way did appear at that term and obtained a certificate of discharge, &c. From this it appears that the defendant Way, so soon as he could consistently with the law, make application for the benefit of the insolvent act, did appear and obtain a certificate of discharge. Why then should he or his securities be made liable on this bond? Neither he nor they have been guilty of any neglect. Every thing, the security of which the law, by requiring the bond, intended to provide for, has been performed. The insolvent for aught that appears has acted with perfect good faith, the certificate has been obtained, and the bond itself is "cancelled," or satisfied.

The plea therefore is sufficient, and judgment must be rendered accordingly.

LESSEE OF ALLEN r. J. R. PARISH.

Copies of deeds, made by disinterested persons, of good character and under circumstances that create no suspicion of fraud, may be received in evidence where the orginal is lost.

Evidence relating to different points of fact may be given to the jury en masse.

The provision, in the Act of Congress of April 7, 1798, for the relief of the Refugees, "that no claim under this law, shall be assignable, until after report made to Congress, as aforesaid, and until the said lands be granted to the persons entitled to the benefit of this act," does not prejudice a conveyance made before a patent is granted.

The act of Congress of Feb. 18, 1801, operated per se as a grant to the Refugees.

The act of 1795, establishing a recorder's office, intended to enforce the recording of deeds executed within the territory under the penalty of being adjudged void against a subsequent purchaser without notice.

A deed, if properly executed is good between the parties, though not recorded.

Where a grantor, having an equitable interest, conveys with general warranty, and a patent for the same land is afterwards granted to him, the patent enures to the benefit of his grantee and the grantor and those claiming under him are estopped to claim the land.

This case was adjourned for decision here by the Supreme Court of Franklin county. It was a motion for a new trial, made by the plaintiff, in an action of ejectment, where a verdict had been taken without argument, for the purpose of considering and deciding various points of evidence arising in the cause.

The motion was argued at bar, by

Hammond and Wilcox, for the plaintiff. Baldwin and Ewing, for the defendant. Judge BURNETT's opinion.

The application for a new trial in this case, has been argued with great ability by the counsel on both sides. The view they have taken of the question, naturally leads to an examination of the following propositions.

1st. Did the court err in admitting the defendant's testimony, in the form in which it was offered and received?

2d. Was the testimony submitted to the jury, sufficient to prove the legal execution of the deed for the premises in question, by John Allen to his son George?

3d. If the execution of the deed be proved, did it pass the legal estate in the premises, to the grantee?

1st. The testimony objected to, and admitted by the court, consisted of a copy of a deed from John Allen, to G. W. Allen, found on the notarial book of R. C. Shannon, dated in October, 1801, attested by two witnesses, acknowledged before the said Shannon, as a justice of the peace, and purporting to convey all the right and title of the grantor, in the premises in question: aiso, a deed of mortgage from G. W. Allen, to Langdon, under whom the defendant claims, for the same premises. Also, sundry depositions going to show, among other things, that at the time the copy of the deed bears date, Shannon was a notary and a justice of the peace, in the state of New-Hampshire, where the transaction took place: that the entry on his notarial book, is in his own hand writing: that he was a man of good character, and that he died a short time previous to the commencement of the present suit. That the persons whose names are found on the notarial copy, as subscribing witnesses, were living in the neigh