| Vt. | Feb 15, 1841
The opinion of the court was delivered by
It appears, from the bill of exceptions, that the facts stated in the second count in the declaration were proved, though no evidence of an express promise was given. it was proved, then, that the pauper came to reside in Dummerston, but had no legal settlement in that town, and that after becoming chargeable, she was removed to Putney under an order of two justices, which had been appealed from and reversed. After the reversal, the pauper remained in Putney and was supported by that town ; and it is for this support that the plaintiffs claim to recover. The obligation upon a town to support their poor arises from the statute, and to enable an individual to maintain an action for the support of a pauper, it must appear that the pauper was supported at the request of the town, or that there had been a subsequent express promise to pay. Aldrich v. Londonderry, 5 Vt. R. 441. Houghton v. Danville, 10 Vt. R. 537. Though the pauper had no settlement in Dummerston, yet, as one of their poor, they were bound to afford her relief so long as she remained such, and if we regard her as such after the order of removal was reversed, still, the town of Dum-merston could not be liable to Putney, without proof that she was supported at their request, or of a subsequent promise. No request is alleged in the declaration and none proved ; and if the plaintiffs can have any plausible ground upon which to recover, it must be upon the ground of an express promise. The declaration sets forth a promise, but from that we cannot learn whether the plaintiffs relied upon an implied, or an express promise. When the testimony was
It has been the practice of some of the judges in this state, in cases where the general issue is pleaded, and the declaration is proved, to direct a verdict for the plaintiff, though it is perfectly manifest, and about which there can be no possible question, that all the facts which the plaintiff has stated in his declaration, and proved on trial, give him no right of recovery. Such a practice should not, at all events, be extended to a case like the present. Here it was material to prove an express promise, without which there could be no possible ground of recovery. For aught that appears from the declaration, there might have been an express promise. We think there was error in the charge of the county court in neglecting to give the instructions desired. For this cause the judgment of that court is reversed; the effect of which will be to open the case again for trial by the jury, and there is no occasion to pass upon the motion in arrest for insufficiency of the declaration.