
    The Overseers of the Poor of the Town of Niskayuna against The Overseers of Guilderland.
    An order of two justices of A. .for the removal of a pauper, directed the constable to convey and transport him to the town of W. being the place from whence he last deih^íiíin'to^a constable of W. whowas required also to deliver coustabie; and Meto™ms°abie¡ shouidhbePtrans^ ported to the place of i<is last legal settlement, if any he lmu, m the state. The pauper was delivered to a constable of W. who transported and delivered him to a constable of N. fhe overseers of hi. appealed to the general sessions from the order, who dismissed the appeal. It was held, that the order had no'iorce beyond the town of W. to which the pauper was first sent; and as to every other place or purpose, was void, for uncertainty; and that ÜT. not being bound by such an order to receive the pauper, had no right of appeal, having acted in their own wrong.
    Where paupers are to he sent out of the state, by virtue of the 7th section of the act, (sess. 24. c. 184.) the justices in their Older of removal, must designate the route by which the pauperis tobe transpO' techand not leave it to the discretion of constables, who are mere ministerial officers, who cannot be allowed to take the pauper where they please, in search of his place of last legal settlement-
    A RULE was granted, by the court, in May term, requiring the court of general sessions of the peace of Albany county, to show cause why a mandamus should not issue, commanding them to hear and adjudicate on an appeal to the said sessions from an order of removal, &c. At the last term, the court óf sessions made a return, that at a court of sessions, held the 22d of February last, an appeal by the overseers of the poor Gf Niskayuna, against the overseers of Guilderland, from u ^ an order of removal made by two justices oí Albany county, residing in Guilderland, whereby Jacob Cluteand his tuife were removed to Niskayuna, was heard. The or-fifer.appealed from was dated the 2d March, 1810, under foe hands and seals of the justices, and stated (upon the v u v £ information of the overseers of the poor of the town of e Guilderland) that Chite and wife nad come to reside m that town, not having obtained a leg;;] settlement therein, nor produced any certificate of their settlement elsewhere, and that they were likely to become chargeable, &c. that the justices, upon due proof made thereof, and on the examination of the said Clute and his wife, upon oath, adjudged the facts, as stated, to be true; and that upon such examination and proof, not being able to discover where was the last place of legal settlement of the said Clute and wife, but that Clute was born, and had once been legally settled in Niskayuna, and that he had lived a number of years in the town of Watervliet, in the county of Albany, but whether he had gained a legal settlement in that town, they could not discover, but they liad discovered, upon examination and proof upon oath, and therefore adjudged, that the said Clute came last from the tov/n of Watervliet, and that he married his wife in the said town of Guilderland. And they, having been ordered, by a certain day then past, to remove to the place of their former settlement, and having neglected and refused to do so, the justices directed and command^ ed the constable “ to convey and transport Clute and his wife to the town of Watervliet, being the tov/n from whence they last came, and to deliver then), at the house of a constable of that town, v/ho was also required to receive them, and convey them to the next constable, and so, from constable to constable, until they should be transported to their last place of legal settlement, if íy¿ch can be found in this state.”
    It-was admitted,, that Watervliet, to ti c-paupers were removed, had sent them with i|e Niskayuna=
    A preliminary objection was made by the r&j before the court of sessions, that, as the ord- - remove the paupers to Niskayuna, nor make any á¡ cation, that that tov/n vras the last place of their legal settlement, the overseers of Watervliet only, and not those of Niskayuna, could sustain an appeal from the order, if any could be sustained. Upon hearing the counse] on both sides, the court of sessions determined, that the preliminary objection was well taken, and, therefore, dismissed the( appeal. '
    Parker, after reading the return,
    contended, that sufficient cause was shown against granting a mandamus. It appeared, he said, that the sessions had adjudicated. If the sessions had a right to decide, and had decided wrong, a mandamus was not the proper remedy; but the proceedings should be brought to" this court, by certlorari.
       The superior courts will not, in the summary way of a mandamus, look into the proceedings of aninferior court. If the merits of the order and adjudication to be inquired into, it should be when the whole 1 ’ proceedings are brought up by certiorari.
    
    [He was átopped by the court, who desired to hear the other side.] . ’ .
    
      I. B. Yates, contra.
    The court of sessions made no adjudication. They did not hear or decide on the appeal, but dismissed it, on a preliminary objection, as to the right of appeal. A mandamus, therefore, is the proper remedy. It is a command from the higher court to an inferior court, directing them to do some particular thing which they ought to do. In all the cases cited from the reports of the decisions of this court, the court below had heard and decided on the merits. The principle of the English decisions is perfectly analogous.
    
      Parker said, that the cases cited were those in which the court refused to hear an appeal. Here the sessions decided, that this was not a proper case for an appeal. It was a travelling order, but. if .there was a right of an appeal from this order, it belonged to Watersliet, not Mskayuna. But, admitting that this court will now enter mto the merits of the case, on this motion, he contended, that no appeal would lie from such an order. It is not an order of settlement. It adjudges no place to be chargeable with the support of the paupers. The only adjudication is, that they came last from Watervliet, and it orders them to be removed there. It is a pass warrant, issued pursuant to the directions of the 7th section of the act for the settlement and relief of the poor. (sess. 24. c. 184.) The order does not adjudge that the last place of legal settlement was at Niskayuna; but merely states, that Clute was born, and once settled there. It is not an order of settlement, as to Niskayuna, unless there is an express adjudication, that that was the last place of his legal settlement. It is what, in England, is called a vagrant pass, from which no appeal lies. To allow appeals from such passes or orders, would produce manifold inconvenience and vexation. There might be a hundred appeals from one order of removal. If Niskayuna has the right of appeal, every other town through which the pauper may be passed, would have the same right. If any appeal lies, it belongs to Watervliet, the town to which the paupers were ordered to be removed, by the overseers of Guilderland.
    
    Again, the statute gives the right of appeal to the party aggrieved. Now Niskayuna could not be aggrieved by an order of Guilderland to remove a pauper to Watervliet. If Watervliet sent the paupers to Niskayuna, Guilderland is not responsible. If the overseers of Guilderland can be made answerable in this case, they would be equally so to all the different towns through which the pauper might have been sent to the remotest bounds of the state.
    
      I. B. Tates. It is true, that in England the general rule is, that an appeal will not lie from a vagrant pass ; but the English statutes relative to the establishment of the poor, will, on a comparisqn, be found, in many of the provi» sipns, essentially different from our act. The 17th section of our act gives the right of appeal to “ every person who shall think himself aggrieved by any judgment or order of any justice or justices of ,the peace, or by warrant of removal of any poor person ” By the act, passed March 30, 1810, (sess. 33. c. 109. s. 4.) on hearing of appeals, under the act relative to the settlement of paupers, the courts of general sessions are required to begin de novo.
    
    No construction can be given to the act relative to the settlement of the poor, as to orders for a direct removal, which does not equally apply to orders for an indirect removal, or pass warrants. The statute makes no distinction between them, in regard to the right of appeal. Even in England, there are cases of appeals from vagrant passes.
    
    Though the court do not directly decide the point, in the case of The Overseers of Shawangunk v. The Overseers of Mamakating,
      
       yet it may be fairly inferred from ■the case, that it was their opinion that an appeal would lie from an order of removal; for the counsel m'ade the distinction between the two kinds of orders, and the court decided on the merits of the case. So in the case of The Overseers of Newburgh v. The Overseers of Plattekill,
      
       the counsel raised the objection that no appeal would lie from such an order ; and the court decided on the merits, without taking notice of the objection as to the right of appeal, which they would not have done, had they supposed the objection well founded.
    Then has any other town, except that to which the pauper is first sent, if aggrieved, the right of appeal ? There is no adjudication as to this point; and it must rest on a fair construction of the act. By the Pth section, the legislature had in view the removal of paupers who' had no place of legal settlement in the state, and intended that the towns through which the pauper was to pass should be designated in the warrant. It could not be the intention of the legislature that the constable should take the pauper to any town he pleased.
    
      The terms of the act, in regard to appeals, are broad. They are allowed to every person, or town, having a reasonable cause of complaint.
    
      
      
         l Johns. Rep. 54. 330. 2 Johns. Rep. 105. 3 Johns. Rep. 23. 6 Johns. Rep. 92
      
    
    
      
       , 1 Burr. Sett. Cas. Wo. 263. p.
    
    
      
      
         3 Bl. Com. 110.
    
    
      
      
         2 Burr. Sett. Cases, 32. 844. 5 Term Rep. 477.
    
    
      
      
         Burr. Sett. Cases, No. 72, 74. 263. Cald. Cases, 18.
      
    
    
      
      
         Burr. Sett. Cas. 105. 204. No. 72, 74. 1b. 18. 844.
    
    
      
       1 Johns. Rep. 54.
    
    
      
       1 Johns. Rep. 330.
    
   Per Curiam.

The Overseers of IT. show no merits to entitle them to the present motion. The order of the justices contained an adjudication, that the paupers last came from the town of TV. and it ordered the constable to convey them thither, and there the order had bpent itself. It did not designate any_ other place to which the paupers were to be removed, either within or without the state; and it would be equally absurd and oppressive, to suppose that it had any ulterior force, when it left every thing at large to constables, without any certainty, or order, or adjudication, as to place or object. The order, as to every thing that was to be done after the paupers had been removed to TV. was void, for uncertainty. Constables are mere ministerial officers. They cannot be roaming over the state with paupers, seeking for some place of settlement. If the pauper is to be sent out of the state, the order of the justices must, at least, prescribe the route. It ought not to be left to the discretion of constable upon constable. This would be repugnant to good order, to the humanity due to the unfortunate pauper, and to the spirit of the act which declares that the stranger shall be conveyed from constable to constable, “ or otherwise as such justices shall direct.5* The justices must, therefore, make a special direction in the case, and here was none made. The town of N. was, therefore, not bound to receive the paupers, without a new order, and if that town did receive them, it was not by the authority of the order, but in their own wrong. The sessions were, therefore, correct, in deciding that the Overseers of N. had no right to appeal from the order.

Motion denied.  