
    The Inhabitants of Norton versus the Inhabitants of Mansfield.
    By an act incorporating a town from part of an old one, it was provided that the two towns should bear their proportionable part of supporting the poor that were at that time relieved by the elder town. Afterwards the two towns made an agreement, that if any person should thereafter be returned as a pauper, having a right to a support from the elder town, the new town should be bound to support him, if his last residence had been in that territory, which constituted the new town. It was holden that the agreement was not binding on the new town, and they were not obliged to support a pauper so situated.
    Assumpsit for money expended in the support of one L. Paine, a pauper, alleged by the plaintiffs to have his legal settlement in Mansfield. The declaration contained also a general count for money laid out and expended by the plaintiffs, for the use of the defendants.
    
      Mansfield was formerly the north precinct of Norton, and by an act of the provincial government, passed in April, 1770, was created a district, having all the rights and duties of a town, except the right of choosing a representative. By the said act it was, among other things, provided, that Mansfield should “ bear their proportion-able part of supporting the poor of the town of Norton, that are at this time relieved by said town.”
    f * 49 ] * After the said incorporation, an agreement was entered into by committees appointed by Norton and Mansfield respectively, and which was afterwards ratified by both the said corporations, dividing the poor that were supported by Norton at the time of the incorporation of Mansfield, and also such as had been returned to Norton after that time, and prior to the date of said agreement; and further agreeing that if any person or persons should thereafter be returned or come from any other town or place to the said town or district, having a right to a support from the former town of Norton, who should have had their last residence in that part thereof which still remained Norton, that town should be charged with the support of such person or persons ; and if they had had their last residence in that part which was then Mansfield, then they should be the proper charge of that district; and in each case the other town or district was to be acquitted from all charges thence arising.
    
      William Paine, the great-grandfather of the pauper, from whom his settlement was derived (his grandfather and father never having gained a settlement in their own right), removed from Norton prior to the incorporation of Mansfield, and his last residence was in that part of Norton which was incorporated as Mansfield.
    
    Previously to the commencement of this action, the town of Fox-borough had recovered of the now plaintiffs the sum of 70 dollars, 38 cents, being the sum demanded in the present suit; of which 23 dollars, 25 cents, was for the support and maintenance of this pauper, and the residue for the costs of that suit. The defendants had due notice of the demand of Foxborough upon the plaintiffs, and were requested to pay the same.
    Judgment was to be entered upon the default of the defendants, or nonsuit of the plaintiffs, as the opinion of the Court should be upon these facts agreed by the parties.
    
      L. Wheaton, for the plaintiffs.
    The act incorporating Mansfield received its construction by the agreement of the [ * 50 ] * two corporations. They had a right to make such an agreement, and they ought to be held to its performance. By its spirit and intent, all paupers, whose settlement should be derived from the last residence of themselves or their ancestors in any part of the original territory of Norton, should be considered as settled in, and chargeable to, that town or district, which should include the place of such residence. In this agreement, which is in itself mutual and highly equitable, these corporations anticipated the provision afterwards made general by the statute of 1794, c. 34.
    
      W. Baylies and Gilbert, for the defendants.
    The act incorporating Mansfield, respected only those paupers who were then chargeable, and had no operation as to such as should afterwards become paupers. The defendants are not liable by virtue of that act  ; and if chargeable at all, it must be by force of the agreement between these two corporations. But that agreement was void, as being beyond the legitimate powers of the corporations to enter into, and as being without consideration.
    But if the agreement is binding, the plaintiffs should have declared specially upon it, and cannot recover upon their general count for money laid out and expended. If the defendants are liable at all in this action, they are liable only for the money paid by the plaintiffs to Foxborough,' for the pauper’s support, and not for the costs of that action. It was their fault, that they did not pay a just demand without the expense of a suit.
    
      
       4 Mass. Rep. 384, Windham vs. Portland.
      
    
   Parker, C. J.

The pauper’s derivative settlement under his great-grandfather was in Norton, he having acquired none himself, nor his grandfather, or father before him. He gained no settlement in Mansfield, by virtue of the incorporation of that part of Norton into a district, in the year 1770. If he was then born, he was not an inhabitant at the time ; nor had any of his ancestors lived within the limits of that district, except his great-grandfather, who had removed therefrom before the incorporation.

* If the plaintiffs can recover, it must be in virtue of [ *51 J the agreement between them and the defendants. The case undoubtedly falls within the terms of that agreement; one provision of which is, that the poor, which should thereafter come or be sent back, should be supported by Norton or Mansfield, accord ing to the residence of the pauper within one or the other of those places. And within the equity and fair intent of the agreement, if the plaintiffs wer.e obliged to pay any other town for the support of paupers, which, according to the terms thereof, should be supported by the defendants, an equitable and legal ground of action would be afforded for their reimbursement.

But this agreement is no otherwise binding, than as it is conformable to the obligations and liabilities of these several corporations, .as settled by the act for the incorporation of Mansfield. For it ought to be presumed, that whatever terms of separation were established by that act, were the result of an agreement between them at the time; or at least determined by the legislature to be just and equitable. Now, the act only provides that Mansfield shall be chargeable with its proportion of the poor, then, viz. at the passing of the act, relieved by the town of Norton.

It was not in the power of the inhabitants of either town, by a vote, to charge the respective inhabitants, beyond this legislative provision. Notwithstanding, therefore, the committees of the two corporations agreed upon this probably equitable distribution, and not withstanding the corporations themselves sanctioned this agreement, we apprehend it is not binding] because Mansfield was under no legal obligation on account of any poor, but those who, by virtue of the incorporating act, acquired a settlement in that district, and their proportion of such as, at the time of passing the act, were supported by the town of Norton.

[ *52 ] * The promise was then without consideration; and it is not in the power of any corporation to bind the estates of its members, except where they have authority by law for so doing .

Plaintiffs nonsuit. 
      
      
        [Brewster vs. Harwich, 4 Mass. 278. —Windham vs. Portland, 4 Mass. 384. -Bath vs. Bowdoin, 4 Mass. 452. —Salem vs. Hamilton, 4 Mass. 676. —Springfield vs. Granville, 4 Mass. 486. —Westport vs. Dartmouth, 10 Mass. 341. —Barrington vs. Lancaster, 14 Mass. 253. -Middleborough vs. Clark, 2 Pick. 28.—Walpole vs. Hopkinton, 4 Pick 357. —Ed.]
     