
    [Chambersburg,
    October 25, 1824.]
    THORNBURY and others, Administrators of THORNBURY, against The Directors of the Poor and House of Employment of ADAMS County.
    
      IN EREOS.
    In an action by the directors of the poor, &c. upon an assumption by the defendant to support a person who afterwards became a pauper, and was maintained by the plaintiffs, a taxable and taxed inhabitant, is a competent witness for the plaintiffs, under the 10th section of the act of the 27th of March, 1823.
    Where the declaration in such an action, avers that the pauper had a right of settlement in the county, and was regularly sent to the poor house by an order of two justices, it is necessary to prove such order; notwithstanding the declaration contains a general count for money laid out and expended by the plaintiffs for the use of the defendant, at his special instance and request; there being no evidence of any such request.
    This action was brought, in the Court of Common Pleas of Adams county, by the defendants in error against the administrators of Thomas Thornbury, deceased, the plaintiffs in error, on an assumption by the intestate to support a certain Daniel Swisher, who afterwards became a pauper, and was maintained by the plaintiffs.
    The declaration contained two counts, the first of which laid the assumption in the following manner:
    
      u That whereas the said Thomas Thornbury, in his lifetime, on the first day of May, 1805, at the county aforesaid, in consideration that a certain Daniel Swisher, before that time, had made over to the said Thomas Thornbury two tracts of land, he the said Thomas, promised and assumed upon himself to maintain and support the said Daniel Swisher, during the life of the said Daniel, which the said administrators, since the death of the said Thornbury, have refused to do; and the directors of the poor and house of employment in the county of Adams aver, that they maintained, clothed, and supported the said Daniel Swisher, who is a pauper, and has a right of settlement in the said county of Adams, and who was regularly sent to the poor house of Adams county by an order of two justices, from the 11 th of January, 1820, to the 15th of November, in the same year, to the value of sixty dollars, which the said administrators were liable to pay, by reason of the aforesaid assumption of the said Thomas Thorn-bury, the intestate; and, in consideration thereof, they did assume and promise to pay the said sum to the directors aforesaid. Nevertheless,” &c.
    The second count, was for money paid, laid out, and expended for the use.of the intestate, at his special instance and request.
    In the course of the trial, John Nitchman ancl William Meals were offered as witnesses by the plaintiffs, and objected to by the defendant’s counsel, because they were taxable, and taxed inhabitants of Adams county. The court, however, admitted them, and sealed a bill of exceptions. Evidence of declarations made by Phoebe Thornbury, one of the defendants, having been admitted by the court, a second bill of exceptions was tendered and sealed.
    Several legal propositions were submitted to the court for their opinion, by the counsel for the defendants, of which it is only necessary to mention one; viz. “ That unless an order placing Daniel Swisher as a pauper on the township or county, be given in evidence, or, if lost, proved by parol, the verdict should be for the defendants. ”
    The opinion of the court was as follows:
    “By the act of the 28th of March, 1819, all debts and property belonging to a pauper, may be sued fcr, and collected by the directors of the poor house. By virtue of this law, if Thornbury was indebted to Swisher, as stated, the directors of the poor would have a right to recover a sum, sufficient to defray any expenses incurred for him as a pauper in the poor house. In ordinary cases, when one man is indebted to another, and a third person voluntarily pays the debt, he cannot recover back the money from such original debtor. But under the provisions of the act of assembly, if Daniel Swisher was a pauper, regularly upon the township of Reading, and legally transferred to the poor house, and was supported and maintained there, and there was a debt justly due from Thomas Thornbury to him, in this suit the plaintiffs would have a right to recover an amount, to defray the expenses so incurred by them.
    “We do not think it indispensibly necessary, that an order should have been produced placing Swisher as a pauper on the township or county. The act of incorporation did not require it, as to the persons on the different townships, when the law erecting the poor house took effect. The act seems to have been predicated on the supposition, that the township officers would have required the legal steps to be pursued, before they would receive a pauper. Nothing seems to have been required, but a notice from the directors to the township overseers, upon which the paupers were to be transferred from the township to the poor house. It would seem, from the evidence, this was done; and it was in this manner Daniel Swisher was admitted. We, therefore, decline charging the jury as requested by the defendant’s counsel.”
    
      Stephens, for the plaintiffs in error.
    
      Dunlop, for the defendants in error.
   Per Curiam.

1. The first exception, on the trial of the cause, was to the admission of two persons offered as witnesses for the plaintiffs, who were taxable, and taxed inhabitants of the county of •Adams. Whatever force there might once have been in this exception, it was of no avail at the time it was taken; because persons in the situation of these witnesses, were declared to be competent, by the act of the 27th of March, 1823, section 10, (Pam. L. 118.)

2. The second exception taken by the defendants, was, to the admission in evidence of the declarations of Phce.be Thornbury, one of the defendants. This exception must have been taken without reflection — surely the confessions of the parties to a suit are evidence.

3. The third error assigned, is in that part of the charge of the court, in which, in answer to a question proposed by the counsel for the defendants, it is said, that it was not necessary for the plaintiffs to prove that Daniel Swisher was a pauper, charged on the township by the order of two justices. This exception is fatal. The first count in the declaration avers, that Swisher was a pauper, and had a right of settlement in the county of Jldams, and was regularly sent to the poor house of that county by an order of two justices. And although the second count is general, viz. for money laid out and expended for the use of Thornbury in his life, at his special instance and request, yet there was no evidence of any request, and it was incumbent on the plaintiffs to prove that Swisher was a pauper, regularly charged on the county according to law; otherwise, no promise could be implied against Thornbury. He could be under no obligation to indemnify the plaintiffs, if they voluntarily undertook the charge of maintaining Swisher; or if they undertook it, under a belief that he was a legal charge on the county, when in truth he was not.

It is the opinion of the court, that the order of two justices should have been produced, or evidence given that such an order had once existed, and been lost. The judgment is therefore to be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  