The statute of this State, chap. 118, making provision for the repair and amendment of highways, provides that all highways, town ways, bridges, &tc. lying within the bounds of any town, shall be kept in repair and amended at the proper charge and expense of such town ; and each town is required to raise such sum of money to be expended in labor and materials on the highways as they shall determine necessary for the purpose.
This sum is to be assessed on the polls and rateable estate, personal and real, of the inhabitants, residents and non-residents of the town, as other town charges are assessed. From the exceptions, it is to be inferred that Benjamin Joy was taxed, as a non-resident, for the support and repair of highways in the town *498of Belmont, in the year 1823, and that the plaintiff paid forty-one dollars and fifty-six cents of this tax by his labor on the highway. For this sum he now seeks to recover of the town.
We see no ground for the maintenance of the action. In the first place, the vote of the town did not authorise the Selectmen to hire the plaintiff, or any other person, to work upon the highways, on account of the proprietors’ tax. By statute, the Selectmen are to assign to the several surveyors their divisions and limits, for making and repairing highways. The vote of the town, raising the money, and directing that the proprietors’ proportion should be laid out under the inspection and direction of the Selectmen, was probably intended merely to authorise the Selectmen to assign the expenditure of the proprietors’ tax on such of the roads and in such parts of the town as they should deem most necessary. Whether that was or was not the object of the vote, we are clearly of opinion that it was never intended to clothe the Selectmen with power to hire labor upon the credit of the non-resident proprietors’ tax, and make the town answerable for such labor ; and that the vote gives no such authority.
This construction is in perfect accordance with the acts of the Selectmen, as well as the plaintiff himself; for, in the second place, no contract was made by White with the plaintiff. The certificate signed by White and Thomas, merely shews that Jackson had paid a certain amount of Joy’s highway tax ; not a word is added about the accountability of the town, or any promise that the money shall be allowed or paid by the town. Can it be pretended that this is evidence of a contract to bind the town to pay back the money ? Suppose that Jackson had paid Joy’s State and county tax, and taken such a certificate as he now produces, could he thereby reclaim of the town the money he had thus voluntarily paid ? Clearly not.
The testimony of White, places the matter beyond doubt, even if without it any doubt could remain. Jackson performed the labor on Joy’s account, and took the certificate as evidence of the fact against Joy, intending, as he held out to White, to turn it towards the payment for land, which he either had purchased or was about to. purchase of Joy.
*499We are decidedly of opinion, that the town never authorized the Selectmen to make such a contract as Jackson now attempts to set up, and that the Selectmen never made or undertook to make any such contract, and we think the jury ought to have been so instructed.
The construction of the vote of the town, under which the plaintiff claims for the Selectmen authority to make the contract, was purely a question of law, and ought to have been decided by the Court.
The verdict must, therefore, be set aside, and if the plaintiff is desirous of having a new trial, it must be at the bar of this Court.