Overseers of the Poor of Fairlee v. Overseers of the Poor of Corinth, 9 Vt. 265

The opinion of the court was delivered by Gollamer, J. This is a question upon the sufficiency of a warning-out process. Little aid can be derived from the cases cited in argument. These cases are mere precedents, and, to render them of force, the words must be the same and stand in the same connection. For instance, the case that decided that the preposition with, in the connection-, in which it there stood, did not mean within, is an authority for no other word whatever. Townsend v. Athens, 1 Vt. Rep. 284. As authorities, these cases have no great importance, because they settle no principle of law.

No doctrine can be extracted from them to construe other words, except the general doctrine, that such proceedings are open to objection, and the courts have adopted a strict construction, — in some cases more, in others less, rigid. We are now called to pass on a set of words, on which there has been no decision.' We shall endeavour to direct ourselves by the rule that, certainty, to a certain intent in general,” is sufficient. The rules of certainty, as drawn from Coke and preserved by the courts, are far from perspicuous, and their application far from certain.

This, probably, arises from their being a specimen of the scholastic learning, which abounded in refined and obscure subtleties. The rule of certainty,, mentioned, is the one ordinarily sufficient in law, and is Coke’s second degree of certainty. This rule requires and means, “ what, upon a fair and reasonable construction, may be called certain, without recurring to possible facts, which do not appear.” lChitty’s Pleading, 237.

It probably amounts to this ; the writing should be such as would be understood to convey the meaning required to all men of ordinary discernment, alike. ■ The faithful application of this rule would disabuse the law of much of the charge of useless refinement and subtlety. The law requires these precepts to be served in .the same manner as a writ of summons. Such writ is required to be served on the defendant, “ by delivering him a true and attested copy of said writ, with the officer’s return thereon,” This means a copy of the writ and a copy of the return on the writ.

The word, thereon, refers to the writ, not the copy. In this case, the return is, “ I served this precept, by leaving a true and attested copy of the same, and return with the within named,” &c. Now, could any two candid men understand this differently, or be, by possibility, misled ? Would not all understand that he left a copy of this precept and this return. The word, thereon, is of no consequence, if it appear by the return, that a true and attested copy of the precept, and also a true and attested copy of the return, which the officer made on the precept, were delivered to the pauper.

The only difficulty with this return, the only objection made to it, is, that it does not say this return. Can this word be understood or supplied by intendment ? In the case, Waterford v. Brookfield, 2 Vt. Rep. 207, the return was, “ I served this warning by leaving a true and attested copy, with, &c.” without saying of what it was a copy. Hutchinson, justice, in delivering the opinion of the court, in that case, said, “ It is objected that he says he left a copy, without saying of what.

It is true, he does not say it expressly, but the intendment is so strong it cannot be misunderstood. “ Served the warning by leaving a copy,” cannot be supposed a copy of any thing except the warning. We got over an objection, exactly similar, in Windham County.” There, the words, “ of this warning,” were supplied, as being clearly implied. Here, the officer returns, that he delivered a true and attested copy of this precept and return. This must intend this return. To say it might be some other return, would be to adopt the rule, that it must be so certain, as to exclude every possibility to the contrary.

Now this is to require certainty to a certain intent, in every particularthe highest degree of certainty, defined or mentioned in scholastic subtlety, confined to the refiners on the STAGIRITE, repudiated as early as Coke, and never required in pleading, except in two or three extraordinary cases. Rex v. Horne, Cowp. R. 682. Judgment affirmed.