This is an action of a new impression, and we are not aware of any legal principles on which it can be supported.
It is well known that the Legislature of Massachusetts considered that a public road through a part of the county of Somerset, to the line dividing this State from Canada, would be of vast importance to this section of the country ;—that it was an object demanding public patronage and public exertion ;—that the contemplated extent and expense of such a road would be such as to render it improper that that county should be burthened with this expense. Under these impressions a resolve was passed authorizing the location and completion of the road, under the authority of certain commissioners,—money was granted them for the purposes then in view,—and the commissioners were directed to apply to the Court of Sessions for the interposition of its powers. With these instructions the commissioners applied to the Court of Sessions for the county of Somerset to lay out the intended road. The Court adjudged it expedient that the road should be laid out at the expense of the petitioners. A committee was appointed to lay it out,—and to prevent all mistakes and improper conclusions, it was expressly stated, in the warrant to the committee, that they were to perform the service assigned them at the expense of the petitioners. The return was accepted,—the petitioners refused to pay the expense,—and this action is brought against the county for the purpose of compelling payment from their treasury.
This action is resisted on several grounds ; but we do not think it necessary to examine all of them, nor to inquire whether an action will or will not lie against the petitioners ;—nor whether the Court of Sessions have or have not power to assess money to defray the expense of laying out roads ;—nor whether such Court is bound to lay out county roads. The single question is, whether this action can be maintained ;—and we are all very clear that it cannot. No express promise is pretended to have been made. Does the law imply one ? In a declaration upon a promise on a consideration which is past, it is always necessary to allege that the act performed, or sum paid, was performed or paid at the request of the defendant, 1 Chitty 297. Livingston v. Rogers, 1 Caines 583. But in the *129present case all implication is rebutted by the adjudication, and the warrant;—in both of which it is declared that the petitioners—not the county—are to defray the expense. Instead of a request, there is an express refusal; and notice of this refusal given to the plaintiffs before they entered on the service. They were under no obligation to proceed, until their fees and expenses were paid them ; and if they have imprudently given credit, it is not the fault of the county. The principle of the case of Whiting v. Sullivan is sound and familiar. The lawr will not imply a promise, against the protestation of him who is attempted to be charged with it.
No eventual loss will accrue to the plaintiffs. The Legislature of Massachusetts will unquestionably indemnify them, according to their original intention.
Plaintiffs nonsuit.