Pawlet vs. North Hero, 8 Vt. 196

The opinion of the court was delivered by Collamer, J. It is undisputed law that an order of removal, duly executed and submitted to, that is, nnappealed from and un-reversed, is while in force, as conclusive, and in the same manner as any other judgment of a court of competent jurisdiction.

Nor does it become necessary here to decide at what time an appeal in such case must be taken ; whether when the removal takes place, and a copy of the warrant is left before a copy of the order,or only when that shall have been left, as this case expressly finds that the time for appeal had not transpired when the case was adjusted. The question is, was it competent to the overseers to make a settlement, adjustment and abandonment of that suit, as it was then situate ?

Can the overseers, who have charge of an order of removal in behalf of a town in whose favor it is made, abandon it on finding it desperate, even by consent of the adversary town ? It will hardly be insisted that this order will be in force' as to others and not as between the parties thereto. That the parties to a legal proceeding may make an end of strife, with safety, by common consent, is surely a principle to be favored ; and should be extended to towns and to pauper causes as well as to all others, unless some very express arbitrary and inflexible rule of law forbid it.

But the court are asked, in this case, to go even further, and give to this adjustment the directly contrary effect from its intended one, that is, not only to say the adjustment shall be avoided, but its effect shall be to deprive North Hero of any appeal, and fix the settlement of the pauper upon them. But on what ground is this asked ? It would seem to be this. First, that the overseers had no power to make such adjustment. The proceeding is begun and carried through by the overseers of the poor.

It is not only their duty to carry it on to an order,, but to take out the warrant, procure it executed, see that a copy of the order is duly served and attend to it if appealed. Having thus the charge of the business they may never procure an order, or may neglect ever to execute it, or give notice thereof, and so permit it to expire.

This is a matter in their discretion, and to say that they may abandon it directly by consent, gives them no more power than to do so indirectly or to have the useless expense of having an appeal entered in court and then nolle prosequi entered by the overseer, which he might clearly do. It is however further insisted that such an abandonment ought not to be permitted because the order and its execution being matter of record and the adjustment not, it might mislead other towns whose rights might come afterwards in question, in relation to the same pauper.

But this might also be said in relation to judgments of courts on many subjects. A defendant recovers in ejectment, and during the same term of the court, while it is open to review, he is entirely convinced this judgment will be reversed on review; he therefore discharges the judgment by release and abandons the land. By our statute a judgment in ejectment is conclusive of title as between the parties. Now it is true some one buying under the defendant might be misled by this judgment, but it will hardly be supposed that it would therefore be holden that the release was void and the judgment in force.

The same may be said of many other legal proceedings. It is indeed possible that some degree of inconvenience might arise, but it would be small when compared with the evils arising from forbidding towns, by their overseers, from settling their pauper suits or holding the inconsistent doctrine that an order settled, abandoned and inoperative between the parties, should still be binding on one party when insisted on by others. G. W. Harmon for plaintiff'. Smalley and Adams for defendant. In entire concurrence with these principles, and fully sustaining them, is the case Rex vs. Diddlebury, 12 East. 359.

Judgment affirmed.