Selectmen of Castleton vs. Lewis Miner et al., 8 Vt. 209

The opinion of the court was delivered by Redeield, J. As the judgment in favor of Ressique against the town was without notice to the defendants or either of them, they are not in any way affected by it. It is strictly res inter alios acta. How far the case might have been affected by notice of the suit to defendants, and a subsequent judgment against the town of Castleton, it is not necessary to determine. The question then must be determined upon the character of Ressique’s claim against the town.

If that was a legal claim, which might be enforced against the town, and he had brought suit or demanded pay, they were not obligedlo enter into litigation with him, but might pay the amount due either before or after judgment, and without notice to defendants. But in paying a claim, as without giving the defendants, as warrantors,an opportunity to contest it, they would act at their peril; and in a suit to recover the amount, must assume the burden of showing, that the claim was just and legal, and that it could not have been successfully resisted. — - Hamilton vs.

Cutts and wife, 4 Mass. 349. — -9 Conn, 154, Stone vs. Hooker. The question to be determined here is, whether Ressique had any legal avoidable claim upon the town of Castleton to reimburse expenses, which he had incurred in the support of Mrs, Dewey. It is admitted there was no express contract between Ressique and the town. Ressique had supported her the year before jor the town by legal contract, and she was incapable of being removed, and the defendants being bound to support her expressly refused so to do.

This may be a case of extreme severity, but the court can see no just grounds upon which it can be said the town were chargeable. It has been too long settled, both in Westminster Hall and in the United States, that no obligation now, aside from that imposed by statue, rests upon towns to sustain their own poor, to be brought in question. The obligation is altogether a matter of positive law, and the right of any one to compel towns to pay for the support of their poor is one siricti juris, and cannot be enforced except in accordance with some statutory provision. — See Middlebury vs. Hubbardton, 1 D.

Chip. 205. — Jamaica vs. Guilford,2 D. Chip R. 103, and the numerous cases referred to in the case of Aldrich vs. Londonderry. — No obligation rests «¡pon,towns, as such, to support their poor, any more than to support stated preaching or regular schools. Nor are towns any more bound to this duty, than school districts or county or any other public corporations, aside from the requisitions of the statute. Hence it has always been held that an obligation or a promise on the part of the town to pay for the support of their poor, can never be implied.

The contract must always be express, either with the town or the overseer, and in the latter case it has been held, the overseer must comply strictly with the privisions of the statute, or he does not bind the town. The case of Aldrich vs. Londonderry, 5 Vt. R. 441, is fully in point. It is almost the same case. And here, although Mrs. Dewey could not have been removed, and was an acknowledged pauper of the town of Castleton, still Ressique could not compel them to pay for her necessary support, except by appplication to the overseers of the poor of Hubbardton, where the pauper was.

This he should have done, and thus Castleton would have been compelled to defray the expense of sustaining the pauper, and could, in that case, have recovered the amount of defendants. But as they have voluntarily paid an expense which could not have been recovered of them, they must bear the loss, and the defendants thus escape perhaps an equitable claim. Of this however we know nothing. The judgment of this court is, that' the plaintiffs take nothing by their motion, and that the judgment of the court below is affirmed.