13 Johns. 380 | N.Y. Sup. Ct. | 1816
delivered’ the opinion of the court, ; If it be -adjmitted.at all, it must be with great hesitation, that,' if even the pauper’s legal settlement was in Tiogathe maintenance of -hliri by Seneea, without-the request, and Without any proinise-by-the overseers óf the poor of Tioga,., will'.give them a right .to maintain an action of assumpsit. ' The cases of:..Simmonsvi fflilmot,. (3 Esp. Rep. 91.,) .and of Wennal v. Adney, (3 Bos, & Pul. 247.) certainly favour the idea, that, in' such a case,'an action of assumpsit could ' lie maintained, on the implied,'promise resulting from the legal'and moral obligation, on the part of the town where the pauper is legally settled, to .provide, for’ and- maintain' him. The case.of Atkins and.another v, Manwell and-another, (2 East, 505.,) is’ directly to the contrary ; in that case, Lord .. Ellcnborough held,-that though amoral obligation was a good'.consideration for an express promise,- it-had never been carried farther/so as to raise an implied promise in law,, and he said there was no '..precedent, principle, or colour, for maintaining the action. ' ... ;
But,, in the present case, there is no proof that the.pauper was legally and rightfully settled in the town of Tioga /-the le.-; gal presumption is against the fact;. for the order-appealed from/ adjudicated' the .pauper’s settlement to be in the town of Seneca, declaring it not to be in Tioga.-. The subsequent reversal of that-order, proves only -that the settlement was not in Seneca:,. and Tiog alias been,,subjected, to all the consequences, provided by the act for making -the order, by.being adjudged to. pay-the . costs, and the expenses incurred in providing for the pauper, intermediate the order and'the reversal of it by the sessions. . ,
The act- (1 N. R. L. 284.) has provided for such- a case, ' It authorizes oyérseep of the poor.of á town,¡where a ,pauper is taken-' sick, so as to be incapable of being removed, to give notice to the overseers of the poor of the town where ha is legally
I will not say, that this is not a cumulative remedy, or that it takes away a common law right to maintain an action of assumpsit for the expenses incurred. But, in the present case, if the objection could be surmounted, that here this is no promise, on the part of Tioga, to pay these expenses, nor request to keep the pauper, the foundation of the action fails ; there appears to be no moral obligation arising from the pauper’s settlement in Tioga, because the fact does not appear to be so.
It may be said, that Tioga was the cause of the expense incurred by Seneca, in this, that the pauper was illegally imposed on Seneca, and it was bound to provide for him to prevent his perishing. Tioga has paid the penalty of that act, by being subjected to the charges of maintaining the pauper between the time of making the order and its reversal, and the costs therein. 1 give no opinion, whether an action on the case could not be maintained, by the overseers of Seneca against the overseers of Tioga, for these subsequent expenses, provided it should appear that the pauper had no legal settlement within this state ; that would present a different question. This action, under the circumstances of the case, is not maintainable.
Judgment reversed.