Town of Middlebury v. Town of Hubbardton

Chipman, Ch. J. deliverered the opinion of the Court. The third section of the act, providing for the support of the poor, makes provision for the removal, to the place of his last legal settlement, of a person residing in a town, and who is likely to become chargeable to such town; such removal is to be made at the expense of the town, making the removal. The fourth section provides for the removal of a person resident in a,town, who, by reason of sickness cannot for a time be removed; and gives the town, incurring the charge of his maintainance, a remedy for the expense of the sickness, and also of the removal, if removed on recovery, against the town of such persons last legal settlement. 207 The eleventh section provides for the case of a transient person suddenly taken sick or lame, and in need of relief. The town where such persen is so taken sick or lame, are to provide for his support; and, if he be not of sufficient ability to defray the expense of his support with the contingent charges, the overseers of the poor of such town, may recover the same, by an action for monies paid, laid out and expended, from the town or place of such persons last legal settlement. It will be seen that the fourth section gives no particular action, it must therefore be a special action on the case upon the Statute. The eleventh section gives an action for monies paid, laid out and expended. But a general indebitatus assumpsit, or monies paid, laid out and expended, will not lie. A case must be made in the declaration, within this section of the statute. It must be stated that the person provided for was a transient person suddenly taken sick, or lame as the case may be, in the town, and not of sufficient ability to defray the expense of his support, with the contingent charges •, and averring, the town on which the demand is made, to be the place of his last legal settlement. All this is necessary to raise the liability under the statute, and to distinguish it from cases arising under the fourth section. In declaring on a case under the fourth section, it must be averred that the pauper had come to reside in the town, had become chargeable and was unable to be removed ; and the declaration must also set forth the sums expended for the support,and the expense of removal, if after a recovery actually removed ; that the account was presented and payment refused. It has been well observed by the council for fhe defendant, that an action'will not lie at common law, against a town for the support of their paupers, by any other town ; and it is equally clear, that such action cannot be maintained on the general provision in the statute, declaring it to bé the duty of each town to support their own paupers, for the statute has pointed out, in what particular cases, they shall be liable to another town for their support, and what step, must be taken to render them liable. The declaration in this case does not come up to either of the cases provided for by the statute. It comes nearest to the case provided for by the eleventh section, but the case, as stated by the plaintiff’s counsel, is a case under the fourth section. The action cannot be supported ; there must, then, be a nonsuit. — Furrand and Hubbard, justices concurred.