
    The Inhabitants of Marlborough versus The Inhabitants of Rutland.
    To entitle a town, which has supported a pauper belonging to another town, to recover an indemnification, it is not necessary that the pauper be actually resident in the town at the time of giving notice in the town in which he has a legal settlement It is sufficient that he is then supported at the expense of the town so giving notice.
    This was an action of assumpsit, brought to recover the sum of 104 dollars, expended by the plaintiffs for the support of Philip Boyns and his wife, paupers, whose settlement the plaintiffs allege to be in Rutland.
    
    The action was tried upon the general issue, at the sittings here after the last October term, before Jackson, J.
    It appeared at the trial that, in the notice given pursuant to the statute, it was not stated that the paupers then were, or had been, in the town of Marlborough. On receipt of this notice, the defendants sent an answer, denying that the paupers had their legal settlement in Rutland, and refusing to provide for them.
    The defendants then objected to the admission of any efidence as to the settlement of the paupers, or the necessaries furnished by the plaintiffs, unless it were first proved * that [ * 484 ] the paupers, at the time of receiving such supplies, were in the town of Marlborough.
    
    The plaintiffs proved that, in 1810, the said paupers were in the town of Spencer, and, being in need of relief, were supplied by that town. Spencer, then supposing that the legal settlement of the paupers was in Marlborough, gave due notice to the plaintiffs, and afterwards commenced an action against them to recover the sum so expended. The plaintiffs, then also believing that the paupers were legally settled in Marlborough, paid the last-mentioned sum before the said action was entered, and, in the autumn of 1810, removed the paupers to Marlborough, and there maintained them. In the following spring, when the plaintiffs were providing for the disposition and maintenance of their poor for the ensuing year, one Asa Rice, of Spencer, who was the son-in-law of the pauper, Philip Boyns, was desirous to take the said paupers to his house in Spencer, and offered to the overseers of Marlborough to maintain them there, at the expense of the plaintiffs, at a cheaper rate than the plaintiffs could otherwise maintain them. A written agreement to that effect was accordingly made on the 8th of May, 1811, between the overseers of Marlborough and the said Rice, for one year ; and the said Rice thereupon carried the said paupers to his house in Spencer. At the end of that year another similar agreement was made between the said parties, and the paupers remained at Rice’s house accordingly, at the expense of the plaintiffs, until after the commencement of this action. It was provided in said agreement, that, if the plaintiffs should at any time be satisfied that the said paupers were not legally settled in Marlborough, and should give notice thereof to said Rice, they should not be liable to pay him, under said agreement, for any time after such notice. And it appeared that, some time in the winter of 1812—1813, after a trial of this action in the Circuit Court of Common Pleas, on which a verdict was rendered for the plaintiffs, they gave such notice to said Rice.
    
    
      * The defendants’ counsel then objected that, on this [ * 485 ] state of facts, the plaintiffs could not maintain their action, because the paupers were not in the town of Marlborough when the expenses in question were incurred. But the judge overruled the objection. The plaintiffs then proved the amount of the expenses paid by them, and that the legal settlement of the paupers was in Rutland. The expenses stated in the declaration were incurred ’ between July, 1811, which was three months before the notice given by the plaintiffs to the defendants, and the date of the writ; during all which time the paupers were at Spencer, in the house of said Rice, under the aforesaid agreements. The jury returned a verdict for the plaintiffs ; and the defendants moved for a new trial, on the ground of the objection last above stated.
    
      Hoar, for the defendants,.
    argued that the plaintiffs had been under no legal obligation to support these paupers, the statute making it the duty of the overseers of the poor to relieve only such as have a lawful settlement in their towns, and such as shall be found therein not belonging thereto, but having legal settlements in other towns and districts, when they fall into distress, &c.  In this case, the paupers were not in Marlborough for several months prior to the notice given to the defendants. In the case of Dalton vs. Hinsdale, 
      
       the Court say that the object of the statute in the provision of three months’ notice, &c., is, that the town liable to support the pauper may remove him. If the defendants had gone to Marlborough, in pursuance of the notice given them, they must have lost their labor, for the paupers were not there. In Quincy vs. Braintree, 
       the Court enumerate, among the facts necessary to be stated in the notice, that the pauper is resident in the town giving the notice.
    This also shows the notice to have been insufficient; and on this ground also the plaintiffs are not entitled to recover.
    There was also a motion in arrest of judgment, for some defects in the declaration ; but it was not much insisted upon.
    * J. Prescott and Draper for the plaintiffs.
    
      
      
        Stat. 1793, c. 59, § 1, 9.
    
    
      
       6 Mass. Rep. 502.
    
    
      
       5 Mass. Rep. 89
    
   Parker, C. J.,

delivered the opinion of the Court.

The question raised in this case is, whether, to entitle the inhabitants of a town, who have supported a pauper belonging to another town, to recover an indemnification, it is necessary that the pauper should have been actually resident in the town providing the relief at the time when notice is given to the town of his settlement, and should literally have fallen into distress within that town.

The report of the judge states that, during all the time comprehending the charges for which this action was brought, the pauper was resident in the town of Spencer, but. supported there at the expense of the town of Marlborough. And the defendants contend that, according to the terms of the statute upon which this action is brought, they are not liable ; because the paupers were not residen! in Marlborough, and not found in distress there, when they received notice from the overseers of that town, and a request that they would provide for their support.

And the principal reason given for such a close construction of the statute is, that one object of the notice is to give the town to which the pauper belongs an opportunity to remove him, if they see fit, and to provide for him themselves, instead of being subject to refund to another town such expenses as should be incurred for such purpose.

We think a more liberal construction of the statute is consistent with the true intent of the legislature, and more conducive to the general object intended to be secured. This object was to secure immediate relief to poor persons, so that they might not suffer, while two towns should be disputing to which of them the liability of supporting them attaches ; and so humane a provision of the law ought not to be fettered or thwarted by too narrow a construction.

It is found, in this case, that, in the autumn of 1810, the paupers were actually in the town of Marlborough, and supported there by the town, they believing themselves liable, although it appears they were mistaken. The paupers * may there- [ * 48 V ] fore be considered as having fallen into distress in Marlborough at that time. Afterwards an agreement was made between the overseers and Asa Rice, in pursuance of which the paupers were removed to Spencer, where they were supported in the house of Rice, who had married the daughter of the husband, at the expense of the plaintiffs. And this contract continued in force during all the time for which they now charge the defendants. If an actual residence is required by the statute, such residence is sufficiently proved in the case; the statute nowhere requiring that it shall con tinue, in order to entitle the supplying town to an action.

It might be inconvenient, both to the town and the paupers, to require that they should be supported within the town where they happen to fall into distress; for cases may often happen, like the present, where some relative of the paupers may incline to take charge of them, at the expense of the town which is liable, at a cheaper rate on account of the kindred, in which case it would be hard, and inconsistent with the humane principles of our pauper laws, that such an alleviation of the distress of poverty should be withheld ; or that such an indulgence should deprive the town of its indemnification.

Nor is there any such inconvenience to the town ultimately liable as has been suggested. For if they are disposed to remove the pauper within the limits of their own town, the overseers who furnish the immediate support must undoubtedly be at the expense of conveying the paupers from the place where they are supported by contract to their own town; and any neglect to do this, after knowledge that the person of the pauper is wanted for the purpose of removal, might affect the right of the supplying town to recover.

On the motion in arrest of judgment, having examined the several counts in the declaration, we are satisfied that no one of them is substantially bad. They all allege sufficient [*488] * facts to entitle the plaintiffs to retain the verdict. If any of them are objectionable, it is for causes which could prevail only on special demurrer.

Judgment on the verdict  