The declaration sets out no facts on which this action can be maintained, either in tort or contract.
No liability is created by St. 1859, c. 225, on the part of towns, for the omission, neglect or refusal of the selectmen to perform the duties imposed on them by the provisions of that act; and none exists at common law. Mower v. Leicester, 9 Mass. 247. Besides, the declaration does not allege any breach of duty by the selectmen. There is no averment that the proof of loss or damage sustained by the plaintiff was adequate or sufficient to establish his right to an order on the treasurer. For aught that appears, the plaintiff may have failed in offering sufficient evidence to satisfy the selectmen that he had sustained any loss or damage by reason of the destruction of his sheep in the manner specified in the statute. But if he had offered such proof, it is very questionable whether any action would lie in his favor for a failure by the selectmen to draw an order on the treasurer. The power to determine on the sufficiency of the proof of loss or damage seems by the terms of the statute to be conferred exclusively on the selectmen. This power is in its nature judicial, because it vests in the selectmen a discretion to determine that the facts are proved, on which their official action is to be based. It was therefore within the scope of their jurisdiction to decide whether the plaintiff had established his claim by proof, and no action can be maintained against them or the town for the manner in which they exercised the discretion vested in them, although they may have erred in the conclusion to which they arrived. Ela v. Smith, 5 Gray, ,121.
*127It is hardly necessary to add, that there is nothing averred in the declaration on which an action of contract can be maintained. The statute creates no debt against the town, and no facts are stated from which an express or implied promise can be inferred.
An objection was taken to the form of the demurrer, because it does not set out the specific grounds on which the defendants rely to defeat the action. But we think it is sufficient in cases like the present, where the demurrer goes to the entire ground of action as stated in the declaration, and not to any specific defect or cause of demurrer, for the defendant to aver that the matters set out in the declaration are insufficient in law to enable the plaintiff to maintain his action.
Demurrer sustained; judgment for the defendants.