We perceive no valid objection to the right of the plaintiff to maintain his action for the first three items in the account. The objection to the maintenance of the action, because of the non-joinder of the town of Plymouth, is in the nature of a plea in abatement, upon which the decision of the court of common pleas would seem to be final. Browning v. Bancroft, 5 Met. 88.

But without placing our decision upon that ground, we think the action may well be maintained, for those services of Harlow for which the plaintiff is entitled to recover, against the defendants alone. The members of the committee are entitled to recover compensation for their services out of the proceeds of the sale of the fisheries. These proceeds, it is agreed, have been divided, and each of the two towns has received an equal part, and a part sufficient to pay for all the services which have been rendered in discharge of the duties enjoined by the statute. If, therefore, the plaintiff recovers of the defendants alone, he will still receive his compensation from the fund which is specifically appropriated by law for such payment.

It is not pretended that the services and expenses charged in the account were rendered or incurred under any contract between Harlow and the town. This action is founded wholly on the provisions of St. 1838, c. 19. It is to be observed that the statute does not give, or entitle the members of the committee to receive compensation, except for their services while they are *318actually engaged in the performance of the duties which it expressly requires of them. And upon a careful examination of all its provisions, it nowhere appears that they are enjoined to watch or inspect the rivers, or to spend their time, or adopt any measures whatever, in anticipation of or to prevent a violation or infringement of the statute. And therefore, though the watching and inspection of the rivers by members of the committee might have been well adapted, and even necessary, to prevent a violation of some one or more of the provisions of the statute, the rendition of such a service could not entitle the plaintiff to recover compensation for it against the municipal corporations which had an interest in the fishery; because the service was not specified or enjoined as a duty, and no provision whatever was made, in case it should be rendered, -for its compensation.

The remaining item in the account is, in terms, “ Cash paid for horse and carriage to Plymouth, on the business of the town.” But it appears, from the facts reported in the bill of exceptions, that this expense was not incurred in promoting, or in reference to, any business of the town; but in order to make a complaint to a magistrate against some individual who had made an assault upon the person of Harlow. This could in no sense be regarded as a service rendered, or an expense incurred, in the discharge of his official duties. As far as the assault is to be considered an injury to him, the seeking of a remedy for it was a matter purely personal to himself; and considered as a public offence or breach of the peace, it was undoubtedly a proper subject for complaint or prosecution. But in either case the expense incurred in pursuit of the object could not possibly lay any foundation for a charge against the town, which was under no responsibility in reference to it, either by reason of any obligation imposed upon it by the legislature, or of any engagement which it had voluntarily contracted. Exceptions sustained.