
    Wilson versus Church et a.
    
    A state pauper, being duly assigned to an individual to be supported by him, made a special contract with the assignee to perform particular services for certain wages. Held, that he might maintain an action upon the contract for his wages.
    Whether a town can assign a pauper by auction, or in any other manner than by indenture, quaere.
    
    The plaintiff was a state pauper residing in the town of Lee. He was assigned to the defendants by a vote of the town authorizing the putting up of him and his family to auction, to be bid off, for one year, by the individual who should undertake to support them for the least sum, in addition to what might be received by the town for their support from the treasury of the Commonwealth. The defendants bid them off at the sum of five dollars. While the plaintiff was supported by the defendants, in pursuance of this assignment, they entered into a special contract with him, by which it was agreed that he should work in their paper-mill, during the year, and should have wages as a journeyman for his services. The plaintiff performed the contract on his part, and brought his action of assumpsit upon it to recover his wages. The defendants pieadea tne general issue, and on tne trial, oefore Putnam J., the jury found a verdict for the plaintiff.
    
      Porter, for the defendants.
    1. The first question is, wheth er the town had a right to assign the pauper in the manner before described. By St. 1793, c. 59, §§ 1, 13, towns are required to relieve and support poor persons, when they stand in need, “ and may vote and raise moneys therefor, and lor their employment.” It is a necessary implication from this provision, that a town may either employ the pauper, or use the proper means for his being employed by some individual. The second section enacts, that the overseers of the poor shall see “ that they are suitably relieved, supported and employed, either in the workhouse or other tenements belonging to such towns or districts, or in such other way and manner as they, at any legal meeting, shall direct, or otherwise, at the discretion of said overseers, at the cost of such town or district.” This section is not repugnant to those before cited. It is in the first instance the right and duty of the town to direct as to the manner of supporting and employing the poor, but if the town neglects to do it, it then becomes the duty of the overseers to make suitable provision. This has been the construction put upon the statute by towns and by the legislature. The words they and meeting, in the clause last quoted, refer to towns, otherwise it would be tautology to repeat the words “ otherwise at the discretion of said overseers.” The town therefore had a right to assign the pauper to the defend ants, and the defendants were entitled to his services.
    2. Could the pauper thus assigned make a special contract i He was bound by the contract made by the town. If the town could dispose of his services, he was divested of the right to dispose of them himself. A contract with any other person than the defendants would have been void. This agreement is void for want of consideration. It is analogous to a contract between a father and his child while under age, between master and servant, or master and apprentice, particularly where the master is under an obligation to support the apprentice. In all these cases, a promise to pay the child, servant or apprentice for his services, would be without con sideration, the father or master being already entitled to them. A promise of a reward by a creditor to his debtor for paying the debt would be void, because it is the duty of the debtor to pay it without such reward. So promises of reward to public officers for performing their duty are void. Stotesbury v. Smith, 2 Burr. 924; Bridge v. Cage, Cro. Jac. 103; Callagan v. Hallet, 1 Caines’s R. 104. A promise of a reward to a seaman for doing more than the ordinary share of duty in navigating the vessel is void. Harris v. Watson, Peake, 72; Stilk v. Myrick, 2 Camp. 317. There is no mutuality in the present contract. The defendants could not have main tained an action against the plaintiff for not fulfilling his engagement. It would be contrary to public policy to sanction such a contract, as a pauper would be encouraged to refuse doing any work unless he was paid for it. He would also be enabled to commit a fraud on the treasury of the Commonwealth, by receiving the benefit of a sum which the legislature deems adequate to his support, at the same time that he is capable of supporting himself, at least in part.
    
      Dwight and Jones, for the plaintiff.
    The statute does not warrant the sale of paupers by auction. Towns are bound indeed to support and employ them, not directly, however, but Dy means of the overseers. The words they and meeting in the second section refer to the overseers, and not to the town ; but it is immaterial, for if the town holds a meeting, it is only for the purpose of directing the overseers. If the town has the power to assign a pauper to an individual, it must pursue the statute strictly. The assignment should be by deed, executed by the overseers. § 6. In the present case there was no deed. The town put up the pauper and his family to auction, and the overseers took no part in the transaction. Towns may erect workhouses, and perhaps make rules respecting paupers, which will bind the overseers, but the overseers are the immediate agents to provide for the support and employment of paupers. If the sale then by auction was void, it results that the special contract is valid.
    Assuming the sale to be legal, could the pauper make a special contract which would bind the defendants, when the pauper had performed his part of the contract ? We think he could. It may be urged, too, that it is contrary to the Bill of Rights to deprive the pauper of his privileges as a member of the community. Bill of Rights, §§ 10, 14. The authorities cited for the defendants are not applicable ; some of them are cases of extortion ; the others depend upon commercial policy.
    It is begging the question to say, that the defendants were entitled to the services of the pauper. They received a fui compensation from the public for his support; if they are entitled to his services likewise, they will get a twofold compensation. And even if the defendants were entitled to his services generally, it does not follow that they were entitled to the particular kind of services stipulated in this contract.
    Mills, in reply.
    The statute is not unconstitutional. Part of the object of it is to compel paupers to be industrious ; and, from an examination of the whole act, it is clear that towns may diiect the mode of employing them, as the town of Lee did in the present instance. The defendants, by the contract with the town, became entitled to the services of the plaintiff, The contract was an equitable one on the part of the defendants, as they made themselves liable for the support of the pauper and his family. If the whole family had been ill, it would have been at the expense of the defendants.
   Per Curiam.

The first question which has been made is, whether the pauper was legally assigned to the defendants. A town has undoubtedly a right to the services of a pauper to aid in his support. So has any person who may have become liable for his support by virtue of a contract with the town. It has been a custom with some towns to make an assignment in the mode pursued in the present case ; and there may be nothing illegal in thus transférring a pauper to any individual, though it might be done in a way less ungrateful to the feelings of the person transferred.

Admitting for the present that no objection lies against the validity of the assignment, the question is, whether the defendants, having a right to ordinary and moderate services from the plaintiff, may not bind themselves by a special contract to pay him wages for particular services. It should seem to be a matter of common honesty, that, though a man may set a slave or indented apprentice to work, yet, if he promises to pay him a sum of money for particular services, or for the purpose of inciting him to increased industry, he should be bound by his promise. By the civil law, a contract made by a master with his slave emancipated the slave. Here there was a good subject for a promise. The plaintiff’s labor was re quired in a particular department in making paper, and he has complied with his engagement. It is too late for the defendants, after entering into the special contract, to say they had a right to all his services.

These remarks render it unnecessary to determine whether the assignment in this case by the town was valid, or whether any assignment would be, unless made according to the statute, by indenture.

Judgment according to the verdict.  