It was held, at a former hearing of this case, that the county of Essex might recover, for the support of an insane person in its receptacle for the insane, of the city or town bound by law to maintain such person, under the Pub. Sts. c. 87, § 49, and that the plaintiff could recover of the defendant, under the St. of 1882, c. 113, the amount of expense it had incurred for his support in the receptacle, if it was required by law to pay that amount to the county of Essex. Newburyport v. Creedon, 146 Mass. 134.
The question now raised is whether the plaintiff has proved that it was bound by law to pay to the county the amount claimed in this suit. The statute provides: “ Provision shall be made for the comfortable support of all persons confined in said receptacles, and they shall be governed or employed in such manner as the county commissioners may in the exercise of their discretion deem best. Such sum a week shall be allowed and paid for the support of persons so confined as the commissioners shall direct, and the same may be recovered of such person, or of any parent, kindred, master, guardian, city, or town bound by law to maintain him.” Pub. Sts. c. 87, § 49. This statute looks to the possibility that inmates may be employed in some manner beneficial to the county, a.nd thus the expense of supporting them may be diminished. Whether they are so employed or not, it leaves the determination of the amount to be paid for their support to the county commissioners; until- they pass some order general or special, it is impossible to determine whether the county can recover any*160thing, or, if anything, what amount, for the support of any inmate. The plaintiff must prove that this requirement of the statute has been performed before it is entitled to recover. Boston v. Amesbury, 4 Met. 278. Such direction or order of the commissioners, if it exists, is easily proved. The only evidence offered by the plaintiff to prove it in this case was the testimony of the treasurer of Newburyport, that for many years the amount paid by the city for the support of other paupers in the receptacle was two dollars and fifty cents a week for each pauper, being the same rate claimed in this suit. If this evidence was admissible, it does not necessarily prove that there was an order or direction fixing the amount in the case of Creedon, the defendant, and we cannot say, as matter of law, that the presiding justice, who tried the case without a jury, erred in holding that it did not satisfy his mind of that fact.
Judgment for the defendant.