
    Ebenezer Sayward versus The Inhabitants of Alfred.
    The town in which a gaol is situated is liable to the gaolor for the support of a poor prisoner confined for not obeying the order of the Common Pleas in providing for the maintenance of a bastard child, of which he is adjudged the putative father ; and such town has its remedy over upon the town wherein the prisoner has his settlement, or, if he has no settlement, upon the commonwealth.
    This action was assumpsit for the support of one Jonathan Stone, and was tried on the general issue, before Parker, J., at the sittings in York after the last May term, when a verdict was [ * 245 ] found for the plaintiff, * subject to the opinion of the Court upon the following facts reported by the judge, who sat in the trial.
    The plaintiff is the keeper of the gaol in Alfred, to which St,ont 
      was committed September 20th, 1806, pursuant to an order of .the Court of Common Pleas for the county of York, upon a judgment that he was the putative father of a bastard child.
    The support of the prisoner by the plaintiff was agreed, and it was in evidence that he has his legal settlement in the town of Shap~ high in this county, and has a father capable of affording him relief and support.
    It was also proved that the plaintiff notified the overseers of the poor of Alfred in the winter of 1806-7, of the poverty of the prisoner, and of the necessary relief afforded him by the plaintiff.
    Some evidence respecting the prisoner’s ability to support himself was offered to the jury, and they were directed, if they believed Stone unable to support himself in prison, • and that the plaintiff, after notice to the overseers of Alfred, had relieved and supported him, that the defendants were liable for all necessary expenses incurred by the plaintiff in that behalf from the time of such notice, and they found a verdict accordingly.
    The action stood over; and now, at this term, Bartht, of counsel for the defendants, moved that the verdict be set aside, and a new trial granted 1. Because the case found the father of the pauper living within the commonwealth, and of sufficient ability, who was liable, and ought by law to have been called upon rather than the present defendants. 2. Because the pauper in this case was committed upon a criminal prosecution, and such prisoners are, by statute of 1794, c. 48., made the proper charge of the commonwealth.
    
      Holmes 8f Emery, for the plaintiff.
    The case of Salem, vs. Andover 
       has settled the first point, that the * kin- [ * 246 ] dred of a pauper are not liable to any demand for his support, except such as may be instituted by the overseers of the town, where he has his settlement, or by some other of his kindred for contribution. And as to the second point, they contended that the party, for whose support compensation was demanded in this case, was not within the statute of 1794, which relates entirely to prisoners confined at the suit of the commonwealth for crimes. The process against Stone was to obtain indemnity for the consequences of a private personal wrong, and has no circumstance, by which it may even be likened to a criminal prosecution, except that the complainant is, from the necessity of the case, admitted as a witness.
    
      Bartlet
    
    in reply. The cause of Stone’s commitment was an of-fence against the laws of the commonwealth, and against good manners. The process is also in form a criminal proceeding, like an information at the suit of the government.
    
      
       3 Mass. Rep. 436
    
   The opinion of the Court was afterwards delivered by

Parsons, C. J.

In this case we are satisfied that the verdict is right. Several of the questions of law arising from the report of the judge have been already settled, unless the cause, for which the pauper in this case was confined in gaol, should distinguish the case from others.

It was decided, in Cargill vs. The Inhabitants of Wiscasset , that a pauper in gaol is within the ninth section of the statute of 1793, c. 59., and that a gaol-keeper is within the thirteenth section of the same statute. It was also decided in the case of The Inhabitants of Salem vs. The Inhabitants of Andover, cited at the bar, that a relation of a pauper cannot be called on to contribute to his support, but by some other relation, or by the town in which the pauper has his settlement.

[ * 247 ] * In the case of Cargill vs. Wiscasset, the pauper was confined in gaol for debt. In the present case, he was confined for not obeying the order of the Common Pleas, in providing for the maintenance of a bastard child, of which he had been adjudged the putative father.

But it is our opinion that the law is the same in both cases. It is the intention of our poor-laws that no pauper should be left to starve, whether he fall into distress in the town where he has his settlement, or in any other town, whether he be at large, or confined in prison. And certainly it cannot be admitted that the law, which confines a man either to secure him for trial, or for the punishment of an offence, should in the mean time inflict another and more cruel punishment, by making no provision to prevent him from starving, when he can make none himself.

By the statute of 1794, c. 48., all prisoners confined either on a charge or conviction of any crime' or offence against the commonwealth, are made the charge of the commonwealth while in prison. Other prisoners, who are paupers, if they have no settlement within the state, are also a charge on the commonwealth; but if they have settlements, then on the towns in which they are settled. And in the case of a pauper not confined for crimes, the town in which the gaol is, must advance the maintenance, and call for indemnity either on the state, or on a town if he be settled.

In this case the pauper was not confined for a crime against the commonwealth. The suit is a civil remedy to enable the mother to obtain contribution from the putative father, and consequentially an indemnity of the town where the child is settled. And although fornication is, by our laws, a temporal offence, yet in this suit no punishment is sought for or can be inflicted .

It would be a hardship on the gaoler, an individual, and generally not of large property, to compel him to advance a support for all his poor prisoners, and seek * for compensa- [ * 248 ] tian at his own expense, where it might be found. It is much more reasonable to enjoin this duty on a town, who may by action at law compel the town where the pauper has his settlement, to reimburse them, or apply to the government, if the pauper has no settlement within the state.

But the shire town, in which the gaol must be kept, complains of this inconvenience. It is an inconvenience without doubt. But the gaol is kept there, because the Courts are there holden; and holding the Courts in any town is considered as a privilege, and is sought for as such. And those who enjoy the conveniences must submit to the inconveniences attending them.

Let judgment be entered on the verdict. 
      
       2 Mass. Rep. 547. — [Doggett vs. Dedham, 2 Mass. 564.]
     
      
      
         Vide Hill vs. Wells, 6 Pick. 104. — Adams vs. Wiscasset, post, 328
     