delivered the opinion of the court.
The only objection, urged by the counsel for the defendants^ is, that the bond set forth as the cause of action, taking it with what averments are contained in the declaration to support it, is' illegal and void ; there being no statute provision that authorizes' a town to take such a bond. This objection supposes a town incapable of taking any security, even in matters which relate to their corporate interests, unless in the exact cases, and in the precise forms, pointed out by statute. It is true, if it appeared by the declaration and pleadings, that the town had used the compulsory powers of the statute to obtain security in a case like the present, and the security obtained was the result of that compulsion, all must be conformable to the statute. So, if a town obtain a security for that, in which the town, as such, can have no interest, and this appears on trial, this security could, probably, avail them nothing. But, where the subject matter of the contract is the appropriate business and interest of the town, the court discover no reason why the contract with the town, suitably framed to secure that interest, should not bind the signers, as fully, as if made to an individual concerning his interest. The case, cited by plaintiffs counsel from 1st of Maulé and Selwin, fully supports this doctrine. In 5th Mass. Rep. also, (page 314, Morse vs. Bodgdon et al.) is a decision in point. The suit was brought by Morse upon a replevin bond, which he had taken to himself, instead of the defendant in replevin, as directed by the statute. The court supported the action. Chief Justice Parsons .says, “ the statute directs the form of a replevin bond, but does not declare void one taken in a different form, and, it being given voluntarily, and the defendant in replevin having accepted it, I know of no statute or common law to render it void.” There are several decisions reported from that state of similar import.
Our statute obliges each town to support the poor within such town. And there are several provisions in the statute, by which any town may have claims upon other towns, and upon individuals. Certain relations are holdcn to support their poor relations within certain degrees, *md in a prescribed mode. Very incon*447venient would be the construction of this statute, that should prohibit an amicable adjustment of all these matters, and force all parties to go through the forms of litigation, when there is no agreement between them. _
Royce and Hodges, for plaintiffs. Williams and Harmon, for defendants._ The bond in question relatos to a subject, that may well concern the town of Pawlet. Their receiving such a bond shows, that they considered themselves interested to be indemnified against the support of these persons, named in the bond. These defendants voluntarily giving the bond, is an acknowledgement on their part, that the town ought to have security in the business. The various breaches assigned, and confessed by the demurrer,, show, that there was no mistake in this, on either part; for the town have been under the necessity of expending money for their support. But, it is urged that they expended none for more than a year after the bond was given. Beit so : the legitimate infer-rence from this is, that the defendants fulfilled the condition of their bond for more than a year after it was given”; and then ceased to fulfill.
It is further urged that it does not appear by the bond or the declaration, that the town had any claim upon these defendants for the support of the BaJcers. It does appear that Chester Baker is son to Rufus and Sybil. But it does not appear, whether he was of such ability that a court would make order upon him for their support. Nor does it appear, but that all the defendants are either in some of the degrees of relationship to be holden, or are sureties for those who are so holden.
Sufficient appears in this declaration to show the bond a proper one for the town to receive, when voluntarily given by the defendants ; and, on these pleadings, the bond must be considered as thus voluntarily given.
If the defendants had pleaded in bar, duress per minas, or imprisonment, to compel the execution of this bond, the facts, disclosed in such plea, must have come under consideration, and might have presented a more formidable defence to the action.
Judgment that the declaration is sufficient.
N. B. As soon as the above opinion was announced, a written motion was filed for the assessment of the damages by the jury ; and a question was raised, about the disposition of this motion.
By the Court. — As the damages are uncertain, either party has a right to have the same assessed by the jury”; and a written request for that purpose being filed, the cause must go down to the county court for such assessment.