He said he had not written an opinion in the cause ; and should not go over the ground examined by Mr. Golden; but would notice one *652point which Mr. C. had deemed it unnecessary to discuss, As had been observed by Mr. C. the. action was brought in the court below, not against those gentlemen who were overseers of Hebron, when the services in, question were performed, but their successors in office. In view to this point, the court were referred, on the argument, to Todd v. Birdsall, (1 Cowen’s Rep. 260 ;) and he admitted, with the case cited, that for a clear debt, the successors would be liable. The claim in that case was confessedly upon a promise legally binding on the predecessor. That is denied in the present case; and he thought correctly, for the reasons assigned in the opinion of Mr. Golden. Todd v. Birdsall, does not profess to determine what shall constitute the debt for which the successor is liable; and has, therefore, no application, beyond the question of parties.
Action lies against the successors of overseers of the poor for a debt due by their predecessor's. The first question Spencer, Senator.The first question presented is, whether the overseers of the poor of a town are liable to be prosecuted for medical services rendered to a pauper, without a previous order of a justice, directing disbursements for such a purpose 1 It appears, that in the year 1817, when the services were rendered, the pauper was admitted to belong to the town of Hebron; and provision was made by that town for his sustenance. The present seems, then, to present the same case, precisely, as that of Hull v. The Supervisors of Oneida, (19 John. 260,) in which it was decided, that an order for the sustenance of a pauper, was not sufficient authority to justify the extraordinary charges for' amputating a leg, and other surgical attendance; and that an order for that express purpose was necessary. In that case, as in this, the services were rendered on the emergency, without any application by the overseers, and without any order of a justice; and the Supreme Court refused a mandamus to compel the supervisors to allow the account. Unless the reasons for the determination in that case are unsound it is decisive of the present; for if a county or town is not liable without such order, the officers of the town cannot be made responsible.
For myself, I consider that decision in perfect accordance with the policy of the statute which requires that, before *653towns shall be charged with any expenses, they shall be authorized by a justice of the peace. Such are the positive provisions of the 28th section of the act for the relief and settlement of the poor; and such have been the uniform and invariable decisions of the Supreme Court. The cases of Voorhis v. Whipple & Hawes, (7 John. 89,) Everts & Allen v. Adams, (12 John. 352,) Ex parte Dow, (1 Cowen, 205,) and Ex parte Overseers of Gates, (4 Cowen, 139,) all expressly decide, or recognize the principle, that a previous order is indispensable. I see no reason for overturning them; nor any authority for repealing the statute.
The second question as to parties.The case of Todd v. Birdsall, (1 Cowen, 260,) was cited by the counsel for the defendants in error, to show that the defendants, as successors in the office of overseers of the poor, might be prosecuted for a debt contracted by their predecessors. Without assenting to the principle of that decision, which considers those officers a corporation, or quasi a corporation, it is sufficient to observe, that it is not applicable here, as the predecessors of these defendants never did contract this debt; and they were never legally liable to pay it, if the previous order of a justice was necessary.
I confess my surprise, that the decision of the justice was affirmed by the Supreme Court; and as we have not been furnished with the reasons of that judgment, I have been at a loss to discover them.
In my opinion, the judgment of the Supreme Court should be Avholly reversed.
For the reasons given by Golden, Senator, Sanford, Chancellor, and Spencer, Senator.
Per totam Curiam,