Lead Opinion
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-
There must be judgment for the plaintiff on the demurrer.
Concurrence Opinion
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.
• 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
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.