Overseers, &c. of Pittstown against Overseers, &c. of Plattsburgh.
over-. pop? o0/ the bvrgkf'Cfthe ta'1?hhin*d Justices1 of that county, adjulegal °settletnent of a pauper to be in the bounty'of orderino- his er?andhcwas removed°'y to Pittstmn.
lhe pauper had no legal settlement m this state. The the poor of pealed to tie rdsessfotls'of íh® county of quashed’th7or° av buuhe°o* veneers of the the town of refused to repe°ve backpató fr pmtTdi^for tám “him™!? be?n?°s™ck all unable to be removed, and he had subsequently to the reversal of the order been maintained by the overseers of Pittstown, who brought an action on the case against the overseers of Plattsburgh to recover their .expenses, -&c. and set forth the above facts in their declaration. Held, on a demurrer to a special plea of the defendants that the action was maintainable, on the principle that a burthen had been unjustly thrown upon Pittstown by the procurement of the overseers of the poor of Plattsburgh^ andasthe pauper had no legal settlement in this state, it was their duty to ex* onerate the overseers of Pitts-town from the burthen which they had cast upon them. But whether the plaintiffs and defendants could sue orbe sued in their private capacity for their own official acts, or those of their predecessors ? Quare.
THIS was a special action on the case. The declaration stated, that on the 8th of August, 1815,' one Elijah Briggs, a pauper, having no legal settlement in this state, and being destitute of property, and wholly unable to support himself, was residing in Plattsburgh ; that Nichols and Palmer, two of the justices of the peace of the county of Clinton, upon complaint made to them by the defendant Morse and one _ , mirk, then overseers of the town of Plattsburgh, that the pauper not having any legal settlement in that town had come to reside therein, and was likely to become a charge to the town, did adjudge the complaint to be true, and did likewise adjudge that the lawful settlement of the pauper was in the town of Pittstown, in the county of Rensselaer ; anj made an order dated the 8th of August, 1815, di07 7 vected to any constable of the town of Plattsburgh, reciting the complaint and their adjudication thereon, and ordering the removal of the pauper to the town of Peru, thence to the tovi n of Chesterfield, and in like manner, by the nearest and most convenient route, to the town of Pittstown, the constable of which town was required to receive the pauPeri and to carry and deliver him to the overseers of the p00r 0f Pittstown, who were required to receive the pauper, and provide for him as an inhabitant of the town of Pitts-town. And the plaintiffs aver, that from the day of the date of the said order unto the time of the commencement of this suit, they have been overseers of the poor of the town of Pittstown ; that by virtue of the before mentioned order, the said justices, the defendant Moore,' and the said Burk, on *437the 26th of October, 1815, caused the pauper tobe remoyed to Pittstown and delivered to the plaintiffs: that the plaintiffs received the pauper, and provided, and have continued to provide for him, food, &c. from the time of their receiving him until the commencement of this suit: that believing themselves aggrieved by the order, they appealed to the next court of sessions of the county of Clinton, to be hold-en on the second Tuesday of May, 1815, at Plattsburgh, and that such proceedings were had thereon, that at that May term of the said court, the order appealed from was ordered to be quashed, and the defendants were ordered to pay to the plaintiffs, twenty-five dollars costs, which order of the court of sessions remains unreversed ; of all which proceedings the defendants had notice : and that Briggs, from the time of his removal from Plattsburgh until the time of the commencement of this suit, has continued to be a pauper, having no legal settlement in this state, and wholly destitute of property, and unable to support himself. The plaintiffs further averred, that from the time of delivering the pauper to them, and until the time of the commencement of this suit, he was and has continued to be so sick, lame, and infirm, that he could not be removed from Pittstown to Plattsburgh or elsewhere, without endangering his life, and exposing him to sudden death ; that the defendants were overseers of the. poor of the town of Plattsburgh from the time of quashing the order of removal until the time of the commencement of this suit : and although the defendants, as overseers of Plattsburgh, ought and were bound, within a reasonable time after the determination of the appeal, and quashing the order of removal, and after they had notice there- , of; and although it was their duty, as such overseers, within such reasonable time, either to remove the pauper from Pittstown, or to take care of, relieve and maintain him during his sickness and lameness; and although a reasonable time for that purpose had elapsed; and although the defendants on the 1st of June, 1816, and often afterwards, were requested by the plaintiffs either to receive the pauper from Pitts-town, or to take care of, relieve and maintain him during his sickness and lameness; yet that the defendants not regarding their duty; but craftily, subtlely and fraudulently intending *438to injure the plaintiffs, and compel them to support the pauper) jjave refused and still do refuse to take care of, relieve or maintain him, by means whereof the plaintiffs have beem unjustly, wrongfully and fraudulently injured, and compelled and obliged to pay a large sum of money, to wit, the sum of 1,000 dollars, in and about the taking care of the pauper and furnishing him with food, &c. and have been put to great trouble and expense in endeavouring to cure his sickness and lameness.
The defendants severed in their pleas, and pleaded respectively, 1. Not guilty. 2. That the pauper was born in Pittstown, and at the time of his removal, was legally settled in the town of Hoosick, in the county of Rensselaer ; without this, that from the time of his removal from Plattsburgh, until the time of the commencement of this suit, the said Briggs was a pauper, having no legal settlement in this state, and concluded to the country.
The plaintiffs demurred specially to the second plea of the defendants, who joined in demurrer.
Mitchill, in support of the demurrer.
1. The plea is a technical traverse, with an absque hoc. It is radically bad. It is double; stating two independent facts. (3 East, 346.) The absque hoc, which is the strongest negative, cannot be followed by a negative. It would amount to an affirmative. (1 Inst. 126. a. 1 Chitty Pl. 576.)
Again; it contains new matter, and concludes to the country, when it ought to conclude with a verification. (1 Saund. 103. note. 1 Salk. 4. 1 Burr. 317. Doug. 91. 412. 2 Johns. Rep. 428.)
2. But it will be objected, that the declaration is bad! In the case of The Overseers of Tioga v. The Overseers of Seneca, (13 Johns. Rep. 380.) the court seemed inclined to think that assumpsit would not lie on the implied promise resulting from the legal or moral obligation on the part of the town where the pauper was settled, to provide for, and maintain him. But Mr. J. Spencer observed, that whether an action on the case could not be maintained by the Overseers of S., against the Overseers of T., would present a different question, on which, however, he gave no opinion
*439By the act, (1 N. R. L. 279. 284.) it became the peremptory duty of the town of P., after the adjudication, to support the pauper. Here was a duty imposed by statute, which has been neglected, and the common law gives a remedy by an action on the case. In the case of the Farmers' Turnpike Company v. Coventry, (10 Johns. Rep. 389.) it was held, that though a penalty was given by the act for Injuring or destroying the toll gates, yet the plaintiffs had an action of trespass, at common law, for the injury to their property.
Conckling and Foot, contra.
1. The plea is substantially good. It is admitted that the pauper had no settlement in this state. What ground was there, then, for this action ? Even if there was a ground of action, the statute has provided an adequate remedy. We state a fact inconsistent with the averment in the declaration, and then negative that fact with an absque hoc.
2. This is a special action on the case for a non-feasance ; and the plaintiffs must show the non-performance of some duty imposed on the defendants bylaw. The defendants were not bound to remove the pauper back to Plattsburgh. As to the sum awarded by the Sessions, for costs, prior to the adjudication, the statute provides a remedy. Can they maintain an action for expenses subsequent to the order ? The defendants have done no more than their duty. Admitting that the pauper had his settlement in Pittstown, the defendants ordered his removel to that town. This was not an illegal act, nor any violation of duty. The duty of the Overseers is, to give notice to the justices to inquire, who, thereupon, make the order. If the order was improper, or illegal, it was not the act of the Overseers; nor are they responsible for it. If this action can be maintained, it may be brought against the successors of the Overseers at the time; but that -will not be pretended. The case of Atkins v. Banwell, (2 East Rep. 555.) which was cited in the case of The Overseers of Tioga v. The Overseers of Seneca, is in point, that this action will not lie; and it was a stronger case, for it was brought against the town where the pauper was settled. It is true, that was an action of as-
*440
sumpsit; but the form of the action can make no difference. The principle is the same. The law recognizes no obligatian to pay, and of course gives no action. This suit was, probably, brought in consequence of the observation thrown out by Mr. J. Spencer, in the case in 13 Johns. Rep. 383. The 25th section of the act provides a remedy, and there is nothing shown which will entitle the plaintiffs to a remedy at common law.
Van Vechten, in reply,
was stopped by the court.
Per Curiam.
The plea was confessed to be bad ; but the defendants insist that the declaration is. bad ; that therefore, is the point to be considered.
In the case of the Overseers of the Poor of Tioga v. the Overseers of Seneca, (13 Johns. Rep. 380.) we held that assumpsit would not lie in a case like the present, on the ground that it did not appear that the pauper was settled in the town from which he was removed. We waived any decision on the question, whether a moral obligation was sufficient to sustain the action, wherqthere was no request to afford maintenance to the pauper. In that case, too, we fore-bore to express an opinion, whether a special action on the case could not be maintained for the expenses subsequent to the adjudication of the sessions, provided it should appear that the pauper had no legal settlement within the state. This case presents that question, for the plea being radically bad, we are referred back to the declaration, and that states the fact, by proper averments, that the pauper had no settlement within the state.
The plaintiffs’ case, then, is this ; a pauper has been illegally fixed upon thcm'by the agency and instrumentality of the overseers of the poor of Plattsburgh ; the order removing the pauper to Piltstown has been quashed ; and the overseers of Pittsown, in consequence of the neglect of duty of the overseers of the poor of Plattsburgh, in not removing the pauper, or providing for him, have been subjected to heavy expenses in supporting the pauper. Upon full consideration, we are of opinion, thatjthis action is maintainable, on the principle, that a burden has unjustly been thrown upon Pitts-
*441
town, by the procurement of the overseers of the poof of Plattsburgh ; that the pauper having no legal settlement in this state, it was their duty to have exonerated Pittstown from the burden they had cast on them. Besides, it may be well doubted whether Pittstown could make an original order as to this pauper, for his removal to any other town; but, at all events, they were not bound to do so. Whether the plaintiffs can sue, and whether the defendants are liable in their private capacity for their own official acts, or the acts of their predecessors, has not been made a question, and the court, therefore have not considered the point. The objection will be open to the defendants, if they see tit to make it; at present, we express no opinion upon it.
There must be judgment for the plaintiff on the demurrer.
Platt, J.
I concur in opinion, that the special plea is defective; but cannot agree with my brethren, that the plaintiffs are entitled to judgment; because, I think, the declaration does not show a right of action.
The declaration states, in substance, the following facts, viz. that on the 1st of August, 1815, Elijah Briggs was removed, as a pauper, from Plattsburgh to Pittstown, on an order of two Justices of Plattsburgh, adjudging him to be legally settled in Pittstown. In May, 1816, the General Sessions of Clinton County, on appeal, quashed the order of removal; and ordered the deféndants, then being Overseers of the poor of Plattsburgh, to pay to the plaintiffs, then Overseers of Pittstown, 25 dollars, for their expenses and costs.
The declaration further avers, that the pauper had no legal settlement in this state / and has continued a charge upon the town of Pittstown, ever since he was so removed to that town, being sick and unable to bear transportation; that the defendants have continued to be Overseers of the poor of Plattsburgh ever since the said order of the sessions ; that they had notice, and were requested by the plaintiffs to provide for the sick pauper ; but that the defendants have utterly neglected to provide for the pauper; whereby great charge and expense have fallen upon the plaintiffs, as Overseers of the poor of Pittstown.
*442The suit is not for the 25 dollars awarded by the sessions; but for neglecting to provide for the sick pauper, from the date of the order of the sessions till the com* mencement of this suit.
• Although the order of removal from Plattsburgh was erroneous, and has been regularly quashed by the sessions; yet,-it is admitted, that the pauper was not legally settled in Plattsburgh ; for the declaration expressly avers, that “ he had no legal settlement in this state
The moral obligation, in such a case, is upon the Overseers of the poor of the town where the sick pauper happens to be. It is the misfortune of Pittstown to have such a pauper thrown upon it; but according to the plaintiffs’ own showing, it would be an equal hardship upon the town of Plattsburgh; he having no settlement in either of those towns.
If it be said, that the pauper was imposed upon the town of Pittstown, by a wrongful order of the Justices of Plattsburgh ; I answer, first, that the defendants, as Overseers of the Poor of Plattsburgh, are innocent in regard to that order; and in no wise responsible for the mistake of the Justices who made it; and, secondly, that those Justices had jurisdiction of the subject; and for aught alleged, acted honestly, in their official order of removal; and, therefore, all ulterior expenses, after the order of Sessions (reversing the order of the Justices,) are damnum absque'injuria.
In the case of Crouse v. Mabbitt and Tripp, (11 Johns. Pep. 167.) on certiorari; it appeared that Mabbit and Tripp, as Overseers of the Poor of the town of Washington, sued Crouse, for “ that he, without any lawful authority, brought into the town of Washington, one IVm. Brown a pauper, having no settlement there, or within this state; that the pauper fell sick, and was supported by them as Overseers, &c. until the death of the pauper, and that the defendant well knew all those facts.’’ The Justice gave judgment in favour of the Overseers of the poor; but this court reversed the judgment; saying “ there is no principle of the common law on which the action can be maintained.”
In the case of Atkins, &c. v. Barnwell, &c. (2 East, 504.) Le Blanc, Justice, said, “ there is a moral as well as legal *443obligation to maintain the pauper in his illness, in the parish where he was at the time.”
Besides ; I am not prepared to admit, that Overseers of the Poor, by our law, have the capacity of suing or being sued, in their oficial and representative character, except where they are specially authorized by statute; as in the three cases expressly provided for, in the 20th, 27th, and 31st sections of the “act for the settlement and relief of the poor.” It is an attribute of a Corporation, which I incline to believe does not belong to the Overseers of the Poor, upón any principle of the common law.
On the latter point, I do not here think it necessary to say more. It was not touched on the argument; and although it is fairly presented upon the demurrer, it will still yemain open to the counsel for the defendants, if they choose to have it more deliberately examined, upon a motion in arrest of judgment.
Judgment for the plaintiff.