| Mo. | Jul 15, 1855
Lead Opinion
delivered the opinion of the court.
The judgment of the Circuit Court is clearly erroneous. Upon the facts of the case, giving them the most favorable construction for the plaintiff, he has no demand against the county that he can enforce as a matter of right in a court of justice. Assuming that the deceased was a poor person of the county, and that the burial of the county poor, as well as their support during life, is embraced in the general duty to take care of them, (the 6th section of the poor law being merely an authority to the county court to apply the county funds at their discretion to the burial of the casual poor that happen to die in the county,) it would be against all principle to allow the plaintiff voluntarily to discharge this duty for the county, and in this manner become its creditor, without its consent, for services rendered, or money expended, in taking care of its poor.
Such volunteer acts create no obligation in any case, without a subsequent express promise, nor even then, unless the party sought to be charged was under a legal obligation to do the act. (Lampleigh v. Brathwait, 1 Smith’s Lead. Cases, 167, and cases referred to in note of Amer. ed. Atkinson v. Banwell, 2 East, 506.) There are cases in which the law will imply a request on the part of such persons, but this is not a case of that character. (Lampleigh v. Braithwait, above cited, Am. note, where the cases on this subject are collected.)
Here, the duty of the county to maintain its poor, including within it, as we have remarked, the duty of providing for their burial, when dead, is created by statute, and did not exist before ; and the statute that imposes it has provided in what manner and by whom it shall be performed. The county court, upon the knowledge of any of their justices, or upon the information of any justice of the peace, are to make the necessary
The present proceeding, it is true, is not an action at law against the county, in the ordinary form, but a proceeding under the 1st and 10th sections of the act of 1845, concerning “ county treasurers,” but the result is the same. The accounts referred to in the tenth section, and, upon a disallowance of which by the county court, an appeal is allowed to the Circuit Court, must be considered legal demands against the county, such as would support an action at law, and not matters resting exclusively in the discretion of the county court over the county funds, instances of which are to be found in the fifth and sixth sections of the act concerning the poor.
The judgment of the Circuit Courtis reversed, and this court, proceeding to render such judgment as the Circuit Court ought to have rendered, affirms the judgment of the county court.
Dissenting Opinion
dissenting. The sixth section of the act to provide for the support of tho poor, prescribes that the county court of the proper county shall allow such sum as it shall think reasonable for funeral expenses of any person who shall die within the county, without means to pay such funeral expenses. This section, I conceive, makes it the imperative duty of the county to pay the reasonable expenses of burying its poor. The law did not intend to give a discretion to the court, whether it would pay or not. For the sake of humanity, it intended that every man who would bury the decaying bodies of the poor, should be paid. In such cases, there is no time to wait — there is no time to consult or ask advice, and therefore the law promises to pay any one who will bury the body. If the law was such that the party would only be paid in the event the county court thought proper to do so, the dead body, in