On the town of Brooklyn, there existed no moral obligation to support Mosher, when in gaol; and if there, had, it would supply no ground from which to imply a contract for relief furnished without request. Watson v. Turner, Bull, V. P. 129. 147. 281. Atkyns & al. v. Banwell & al. 2 East, 505.
As little foundation would there be for the supposition, that there was resting on Brooklyn a common law obligation, to advance necessary supplies for the pauper. In Wennel v. Adney, 3 Bos. & Pul. 247. it was said, by Lord Alvanley, that parish officers, in a case of necessity, were bound to render assistance ; and to the same effect are the cases of Cargill v. Wiscassett, 2 Mass. Rep. 547. and Daggett v. Dedham, 2 Mass. Rep. 564.; but in all these instances, the opinions expressed were founded on statute laws, made for the relief of the poor.
The plaintiff, to sustain his action, must show, that Brooklyn was under a legal obligation to relieve the necessities of Mosher ; and in that event, a contract to retribute him, would he implied against the town. On this point, there is no obligation imposed by statute or common law, or the least countenance given for the indulgence of such a supposition. Here I might pause ; but a few remarks intimating where obligation lies, may not be unsatisfactory.
By the 11th section of the statute, concerning delinquents, p. 233. ed. 1808. when a person prosecuted for any matter of delinquency, who ought to pay the costs of prosecution, shall have no estate to make payment, he may be disposed of in service, to raise the necessary sum ; and if the money cannot thus be raised, and the prosecutor was before a justice of the peace, the costs shall be paid out of the treasury of the town, where the trial was had. On this subject, I would not speak decisively ; but I am inclined to the opinion, that, under a liberal construction of the expression, the costs of prosecution, the town in which the conviction of Mosher was had, and to the treasurer of which, the tine was payable, was bound for his necessary support when in prison. Although not within the words, literally understood, the town seems to be embraced, by the reason of the law, and by an enlarged, but perhaps not too liberal a construction of its expression. In all events, for the plaintiff’s claim before the court, there exists no foundation.
The other Judges were of the same opinion.Judgment to be affirmed.