
    The Inhabitants of Bath versus the Inhabitants of Freeport.
    No action lies by one town against another for the expense of supporting a pauper, unless such expenses accrued within three months previous to notice; hut whether this limitation extends to the expenses of the removal or burial of the pauper, qucere.
    
    Assumpsit for the expenses incurred by the plaintiffs in the support of James Woodman, a pauper, whose settlement the plaintiffs allege to be in Freeport. The action was tried upon the general issue at the last September term in this county, before Thatcher, J., and a verdict found for the plaintiffs, subject to the opinion of the Court on certain facts stated by the parties; it being [ * 326 ] * agreed that if it should be the opinion of the Court that the action is maintainable on the facts thus agreed, judgment should be rendered upon the verdict; otherwise the plaintiffs were to become nonsuit, and the defendants recover their costs.
    From the case agreed, it appeared that the expenses were incurred as charged by the plaintiffs before the tenth day of November, 1804, on which day the pauper died ; and that during the time he was so supported, he had his legal settlement in Freeport. No notice was given to the town of Freeport of the situation of the pauper, or of the expenses that had accrued for his support and burial, until the eleventh day of March, 1805, at which time the inhabitants in legal town meeting, voted that they would not pay the same.
   The action was submitted without argument, and the opinion of the Court was delivered by

Parsons, C. J.

Assumpsit lies on a promise to discharge a legal obligation created by statute. But in the declaration all the facts must be averred, which are necessary to constitute this legal obligation.

To charge the defendants in this action, it is not enough to allege, that the object of the relief was a pauper having his settlement in Freeport, and tho the expenses were necessarily incurred in his relief; but also that the defendants had notice of the distressed situation of the pauper within three months from the time when the expenditures were made. For such notice is a fact * necessary with others to constitute the legal obligation [ * 327 ] which will support a promise; the existence of the legal obligation being the consideration of the promise .

From the case reserved it appears, that all the expenses of the plaintiffs for the maintenance of the pauper, were incurred before the tenth day of November, 1804, and that no notice was given to the defendants until after the expiration of three months from that time. The defendants are therefore under no legal obligation to reimburse any part of those expenses, and consequently there is no consideration for the promise alleged. The evidence admits that there was no express promise, and there are no facts from which an implied promise can be inferred.

How far the want of notice of relief within three months is a good objection to the recovery of the subsequent expenses of removal, or of the funeral in case of the pauper’s death, may deserve further consideration. Notice is to be given of the distressed state of the pauper to the town in which he is settled, that he may be removed and maintained by the inhabitants, if they see cause, rather than submit to pay the expenses of relief advanced by the overseers of any other town; and the town relieving ought to have a reasonable time to learn the place of the pauper’s settlement. This time is limited by the statute to three months. But whether this limitation extends to the expenses of removal, or of the funeral, may be doubted, not only from the nature of the expenses, by which the town cannot suffer any inconvenience from the want of notice, but also from the words of the statute, which provides for the repayment of the expenses incurred for relief, until removal on three months’ notice being given, as also of the removal or funeral of the pauper.

* But it is not necessary now to decide this point, as [ * 328 ] there appears to be no demand in the declaration for any expenses for the removal or for the funeral of the pauper.

According to the agreement of the parties, the verdict in this case must be set aside, and the plaintiffs become nonsuit. 
      
      
        Salem, vs. Andover, 3 Mass. R. 436.
     