delivered the opinion of the Court. It has been objected that the plaintiffs, as overseers of the poor of Pittstown, have not a capacity to sue for the injury apege(j jn declaration. This point was reserved when a questi°n on the pleadings came before the Court, (IS Johns. Rep. 436.) in this cause. However correct the principle may be, ordinarily, that the Court will not, upon a motion in arrest of judgment, suffer a point decided on demurrer, tobe again agitated, that principle has no application here ; for the demurrer was not to the declaration, but to the second plea. Independently of that, we expressly waived the decision of this question, because, it had not been argued. Under the facts in the case, it is not impeaching our decision on the demurrer, to hear this point argued again, and it would be very unjust not to entertain the question now.
The overseers of the poor are town officers, coeval almost with the settlement of the country. They are the public agents and trustees of the towns, in respect to their poor, and must necessarily, without express authority from the legislature, possess a capacity to sue, commensurate with their public trusts and duties. In Jackson v. Hartwell, (8 Johns. Rep. 424.) we recognized the authority of the supervisors of a county, before the act authorizing them to' take grants of land jor county purposes, to take such grants. They are,pro tanto, endued with a corporate capacity. We there said, that there are many instances in the case of collective bodies of men, coming under one general description, endowed with a corporate capacity, in some particulars expressed, but who have, in no other respect, the capacities incident to a corporation. We mentioned the example of a power in churchwardens to take goods, and to bring actions of trespass, and referred to Mr. Kyd, for numerous instances of the like kind. In short, there can be no doubt that when a public office is instituted by the legislature, an implied authority is conferred on the officer, to bring all suits, as incP dent to his office, which the proper and faithful discharge of the duties of his office require. The statute for the relief and settlement of the poor, (1 N. R. L. 219.) has given the right to sue in certain cases, in expréss terms; but this by *419tío means proves, that the power would not have existed in-dependency of the statute.
It now appears, that the pauper had a settlement in this state, and that it was in Hoosick ; and the main question is, whether the overseers of the poor of Pittstown were bound to make an order removing the pauper to that town. When the case came before us, on the former occasion, we expressed an opinion that they were not bound to do so. It is to be observed, that this was an obiter dictumfor the declaration, the sufficiency of which we were considering, contained an express averment that the pauper had no legal settlement in this state. If that averment had been proved, and if it had not appeared that the pauper had a legal settlement in the state, I certainly should have considered this action as sustainable, for the reasons there expressed by the Court. On a review of the cases, I am of opinion, that it was competent to Pittstown to make an order of removal; and that the pauper having a legal settlement in this state, the defendants, as overseers of the poor of Plattsburgh, are not answerable.
We cannot intend that the order, made at the instance of the overseers of Plattsburgh, was done mala fide. This is never to be presumed, even of individuals ; and the consequences to which they exposed those whom they represent-' ed, as regards the appeal, the expenses of the pauper, and the costs, all concur in repelling the idea, that their motives were not bona fide. The act, to be, sure, turns out to be unwarranted ; and the town of Plattsburgh has paid the le-ggl penalty of that act. Upon the reversal of the order of removal, it was as though it had never existed. Pittstown, then, as regards any other town, had an original right to make an order of removal. The pauper having come to reside in Pittstown, no matter how, was likely to become chargeable ; and then the statute confers the authority on the overseers to make application to the Justices, who may thereupon make an order. I still think, that it ought to have been made the duty of the overseers of the poor of a town from which a pauper has been removed, on quashing the order by the Sessions, to take back the pauper, at their own expense ; and that it is unjust to leave the town, having a *420pauper improperly laid at their door, to take measures, at their peril, ,rs regards other towns, to find out his setlle-mentj but this is a casus omissus in our statute book. • In the case of the inhabitants of Chalbury and Chipping Farrington, (2 Salk. 488.) Holt, C. J. was of opinion, that the town appealing from an order of removal, after it was reversed, had a right to send the pauper back to the town from whence he was removed. If so, then Pittstown was not without the means of relieving herself from this order of removal. Upon the whole,' as it now appears, that the pauper was not settled in Plattsburgh; that he had a legal settlement in this state ; that Pittstown could either have sent him back to Plattsburgh, or made a new original order on the town of Hoosick, for his maintenance; and as the proceedings on the part of Plattsburgh, must be regarded as bona jide, and the statute does not create or impose upon that town the duty of taking back the pauper, I am of opinion that the defendants must have judgment: This conclusion renders it unnecessary to examine several other points raised in the course of the argument.
Judgment for the defendants.