#### Brooks and another, *Overseers of the Poor of the Town of Tioga, against*Read and another, *Overseers of the Poor of the Town of*Seneca.

tA’em-owlby' «i order of two justices, from the'town of. T.. to. the’town of S. On appeal, the order •was'quashed, andtheoyerseers óf T,. directed to pay a sum of money to the overseera of S. on account of the expenses of the patíper, iritefihedjate between the time of tlie renlov&i and quashing the order -At the time 'the or.der was quashed, the pauper could not, ‘by reason of ill health;' be reconveyed to T. * But was supported forsbme time thereafter, attheexpéuse of the overseers o‘f- S. Heid^ thát'theoverseersof s! Ooulci not maintain an action of assumpsit against the overseers ofT.,toreco,Ver:the amount.of those subsequent expenses, there being no-previous request, or expresspromise to ,pay them; and admitting that $ moral obligation would be a good consideration for a n-wnpfted. promise,, here was no moral obligation orí the part'.óF the overseers'of T. ,«s itr*i?ld not appear that, the pauper was legally settled in T. ; .for the order of sessions quashing the original order of di-es not that the was settled in T but 'that he was not settled *}*

Whether the jirpvjsioD of the act lor the relief and’Settlement ,of the-.pcior, (sess. 36. c 78; s,„l5.) giving a summary remedy to the overseers oí', the poor of one'town, who have»supported a pauper of ‘another Hown, who,.by-reason of sickness, could not. be removed, against the'overseers of that; other town, is‘Cumulative,, or takes awajr the common law remedy ? *Quarc..*1 ’ . ■ 1 /

‘Whether, if A. B. háü had no legal settlementinthis state, the overseers of S. could have maintained an aetioa against the overseers of T for the expenses incurred subsequently to quashing the of removal? *Qúaw.*J >

Whether a mordí obligation will -support enaction on aaimplied'assumpsitTQw(er^

ERROR, to tíre court,of common jffeas-of the. county'of*’Pihua*' • ■ ’ - ' ' ' , ” *'-*■ tvgU»*•. . . , -

*381The defendants in error, who were the pi? intiffs in the court below, brought an action of *indebitatus assumpsit,*in the court below, for meat, drink, board, washing, lodging, medicines, medical assistance, attendance, and other necessaries, provided at the special instance and request of the defendants, as overseers of the poor of the town of *Tioga,*for one *Robert M'Phee,*and for money paid for the use of the defendants,, The defendants pleaded the general issue. The cause was tried at the *May*term, 1815, of the court of common pleas of *Tioga*county.

On the 2d *January,*1813, an order was made by two justices of the county of *Tioga,*and directed to any constable of the town of *Owego,*(now the town of *Tioga.)*which order recited that *Robert M*Phee*had come to the town of *Owego,*not having obtained a legal settlement therein, and had become a charge to that town, and adjudicated that his last settlement was in the town of *Seneca,*in the county of *Ontario,*and directed his ret moval thither. The overseers of the poor of the town of *S'eneca*appealed from this order to the court of general sessions of the peace of the county of *Tioga,*which, in the *May*term, 1813, of that court, quashed the order of removal, and also ordered the overseers of *Owego*to. pay to the overseers of *Seneca,*the sum, of 71 dollars and 40 cents, to reimburse them for the money, which they had expended for the relief of the pauper, between the time of his removal to Seneca, and the determination of the appeal, and also 32 dollars and 93 cents for their costs. It was proved, on the part of the plaintiffs, in the court below, that *31‘Phee*was, at the time of the reversal of the order of removal, in such a state of health that he could not be taken back to *Tioga;*and that from the 5th day of *May,*1813, when the order of removal was quashed, to the 20th of *September,*1814, when he was reconveyed to *Tioga,*the plaintiffs below had expended the sum of 199 dollars and 23 cents for his maintenance, and that they had also paid 24 dollars for removing him to *Tioga. A*witness on the part of the plaintiffs, below proved that in *June,*1813, he went, at the request of the then overseers pf *Tioga,*to the town of *Seneca,*for the purpose of receiving the pauper; but that being so ill that he could not be removed on horseback, the only means of conveyance with which the witness had been furnished, the witness refused to take him, and left him in the charge of the overseers of *Seneca,*as before. The plaintiffs below having rested their cause, the defendants *382•moved for a .nonsufyi which was. overruled.; -they then offered t® give-evidencé of certain facts, (which it is unnecessary to state,} but the co.urt rejected the testimony, and. a vérdiot and. judgment were given for thy plaintiffs.below.,/ The. defendants be* low, ..the present plaintiffs in error, tendered *U*bill ..of exceptions, to the opinion of the court below, which was removed into' -this court by writ of errors .The cause was. submitted without argu-' ment,, A •/: ;

Spencer, J,,

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 *383shilled, of the name, condition, and circumstances, of such poor person, requiring them to take care of, &c., such poor person; hnd, in case of neglect, it gives a summary process to levy all sums of money necessarily expended in his maintenance.

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.