
    [NOVEMBER TERM, 1802.]
    *Shreve, Overseer of the Poor, against Budd.
    IN ERROR.
    An action may be maintained against an overseer of. the poor to recover from him the expenses of supporting a pauper, who was legally entitled tou relief, and when the overseer, after notice, neglected to relieve. Under wha circumstances such action is maintainable.
    This was an action of debt, brought in the Common Pleas of Burlington, by Budd against Shreve, as overseer of the poor for the township of New Hanover. The declaration set forth, that one Doras, a poor, aged and diseased person, had been under the particular charge of the overseer of the poor, who had preceded Shreve in that office, and was chargeable, and received support from the said overseer, and from Shreve, after he was elected, and entered upon the duties of said office; that the defendant below was duly chosen overseer .of the poor for the said township, and, in that capacity, was bound, during his continuance in office, to take charge of, relieve and provide for such poor, aged and indigent persons as should fall chargeable to any of the inhabitants of the township of New Hanover, by indigence, disease, or other casualty. And the plaintiff avers, that he is an inhabitant of said township, and that the said Doras fell and became chargeable to him, the plaintiff, by reason of poverty and disease, and without any default in the plaintiff himself, and traverses that he was in any manner liable to maintain or support the said Doras. That he gave notice to the said defendant of the condition of the said Doras, and requested him, as .overseer, &c., to take him, or cause him to be taken, from the dwelling house of plaintiff, and to relieve and provide for the said Doras, so being entitled to relief according to law. Yet the said Shrove, overseer, not regarding, &c., did refuse to take charge of, relievo, &c., but left the said Doras chargeable to the plaintiff, &c. The defendant pleaded nil debet, and gave notice, under the act of assembly, that he would endeavor, on the trial of the cause, to prove that the said Doras, at the time laid in the declaration, was the slave of the plaintiff, who was, of course, liable for his maintenance, and that the township of New Hanover *ought not to be charged with his support; and further, that he would contend that he had not received notice, as is required by law, to charge him with the expenses, &c. Issue was joined between the parties on the plea of nil debit. On the trial, the jury found in favor of the plaintiff one hundred and seventeen dollars debt, with costs of suit, upon which verdict judgment was entered, and the cause removed to this court by writ of error.
    At the trial in the Common Pleas, the plaintiff opened, that he would prove that the pauper, in the winter of 1796-7, came to the township of New Hanover, and there casually became sick and helpless, &c., &c.- — The defendant objected to the admission of the evidence; the objection was overruled by the court, and a bill of exceptions tendered and allowed.
    The reasons in error, which were relied on principally in the argument, wore — 1. That the matters set forth in the declaration are not sufficient, in law, to maintain the action. 2. That the court refused to non-suit upon the plaintiff’s evidence.
    The case was argued by M’llvaine, and Woodruff, (attorney general,) for the plaintiff in error, and L. If. Stockton and Griffith, for defendant.
    
      For the plaintiff in error.
    
    If any action can be maintained in the present case, it must be founded on the act of March 11, 1774, (Allison 403; Fat. 27, see. 5; Fev. Laws 
      36, see. 5). but, under the fifth- section of this act, it is incumbent on every person who receives a vagrant into his house, to give notice thereof, in writing, within ten days, to the overseer of the poor of the township. This duty is enjoined under the sanction of "a penalty, and unless the plaintiff shews that he has complied with the terms of the law, so far from being competent -to recover money which he has expended in the support of a vagrant, he subjects .himself to a penalty. It would have been a sufficient answer to his claim, to have pleaded this section in bar, but it was included in the notice subjoined to the plea. The pauper was a negro, without any settlement in the township; it therefore was essential to the- interest of the township that the overseer should have been notified, as the act requires. Further, the plaintiff should have shewn that the township was liable for the support of the pauper. He is shewn to have been a negro, and it was not proved that his master was incompetent to his support.
    *The only section in this act of the legislature which speaks of the recovery of the expenses of maintaining a pauper, is confined to cases where the overseers of one township have been compelled to support a pauper who had a settlement in a foreign township. As a preliminary to a recovery, even in this case, notice is essential; and if the remedial part of the act is to be extended by construction, so as to embrace a case like the present, surely the guards which have been interposed by the legislature, and the conditions upon which this redress is to be obtained, are to be extended also. The overseer of New Hanover cannot recover of the overseer of the poor of the township where Doras has a settlement, without giving notice; and certainly he ought not to answer expenses which others have voluntarily incurred, without receiving notice.
    
      For the defendant.
    
    The objection taken by thé defendant- below, resolves itself into this simple question, whether private individuals are to be' burthened with supporting' the poor of the township; or, whether the overseers, who are appointed for the purpose of relieving and assisting them, are liable to perform the duties for which they are chosen ? Every individual who enters upon an office contracts with the public, that lie will perform the duties of it with integrity, diligence, and skill. 3 Bl. Com. 165. The duties of an overseer of the poor are distinctly set forth in the act to which the opposite counsel have referred; and there can be no question but that the pauper, who was left dependant upon the charity of the plaintiff below, was one of those to whom the overseer was bound to supply assistance; that he was regularly informed of the circumstance, knew of his duty, .and evaded it. The section to which reference has been made, is on a point entirely foreign, and cannot affect, in any manner, the present question. If Budd has violated the law, and subjected himself to a penalty, he is answerable in the proper manner: it is no defence to the present action. The jury have pronounced that the overseer was notified ; the evidence upon which they and the court below decided, is fully set forth in the bill of exceptions, and contains everything necessary to entitle the plaintiff below to recover.
   Per Curiam.

Two questions have been made the subject of discussion. 1. Can an action be sustained upon the case set forth *in the declaration ? 2 Was the evidence sufficient to entitle the plaintiff below to recover ?

As to the first, it appears, from a view of the "whole act for the settlement and relief of the poor, that to prevent the charity of individuals being oppressed and exhausted by heavy burthens, and that an ample and ready relief might be afforded to the indigent, overseers have been appointed in each township, whose duty, under this act, is to see that the poor of every description do not suffer, but are relieved and supported from the funds provided at the general expense. By the ninth section of this act, it is enacted, “that if any poor person shall come from another township into one where he has no settlement, and shall happen to be taken sick or lame, so that he cannot be conveniently moved, that then the overseers of that township shall provide for him, and, by giving notice to the overseers of-the township where he was settled, the expenses shall be repaid.” Shall an individual, then, be placed in a worse situation than a-township ? The spirit and intention of the act of the legislature that makes this provision for the poor man who comes into a foreign township,.should equally apply when he comes-to the house of an individual.' A poor man leaves the poor house, and goes to the house of an inhabitant of the same township, and is there taken in such a situation that, in the words of the act, “ he cannot be conveniently moved,” and notice is given to the overseer of the poor, who refuses to' comply with his duty, and take care of him, is the individual who has permitted him to take shelter under his roof to be reduced to the dilemma, of either encountering himself the whole expense of the pauper, and burthening his family with this superadded charge, or, to avoid this perhaps to him insupportable load, to turn a sick and necessitous fellow creature into the road to starve ? To establish the doctrine for which the plaintiff in error has contended, would neither comport- with good policy, nor with those laws of Christian morality that should afford a rule of conduct in every state.

Upon the second question, it appears, from the evidence set forth in the bill of exceptions, that Doras had actually been a pauper under the charge of the defendant below, who was one of the overseers, and had taken no legal steps-to remove him; that while he was in this situation he wandered to the house of Mr. Budd, who immediately notified the defendant of the *circumstance. This evidence was sufficient to go to the jury, for their decision. They have passed upon it, establishing the truth of the facts upon which the plaintiff rested his case, and ascertaining the damages which he had sustained ; and no grounds have been laid before us to convince us that in either respect they have erred.

Judgment affirmed.  