Overseers v. Overseers , 15 Johns. 436 ( 1818 )

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-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.