
    Seth Scammon, Sup’t of Reform School, versus Inhabitants of Wells.
    It is provided by c. 37 of the Acts of 1858, that the expense of subsistence, &c., of a boy sent to the Reform School shall be defrayed by the town, where he resides, if in the State; otherwise by the town in which he commits the offence: — Held that the town of his residence at the time of his commitment, if within the State, is thus made liable, and not the town in which he committed the offence.
    The statute makes it the duty of the magistrate to certify in his mittimus the town in which the boy resides, if known: which certificate shall be sufficient evidence in the first instance to charge the town. But the omission of the justice to certify the fact, will not defeat the right to recover, for the statute makes that right, absolute, while the making of the certificate is conditional; and the fact of residence may be' proved aliunde.
    
    This was an action, by the plaintiff as Superintendent of Reform School, to recover to the use of the State, from the defendant town, for expenses incurred for the subsistence and clothing furnished one Frank L. Pinkham at the reform school, and expense of transportation of him to said school. The statute on which the suit is founded, is recited in the opinion of the Court.
    The facts in the case sufficiently appear from the opinion of the Court, and the points made in argument.
    
      M. H. Smith, for the plaintiff.
    
      
      T. M. Hayes, for the defendants.
    Every fact requisite to bring the ease within the provisions of this statute should be alleged. Among other things, it was necessary to allege that the justice, before whom the conviction was had, certified in his mittimus that the convict resided in the defendant town, at the time of conviction. This is the plain meaning of the statute, which makes the town liable where the residence is at the time of conviction, and not at the. time of the commission of the of-fence. The offence may have been committed any number of years before conviction. The phraseology of the statute is all in the present tense and applies to the time of conviction only.
    The plaintiff’s count asserts that the justice certified in his mittimus that the convict resided in Wells, at the time of the commission of the offence, but not that he resided there at the time of his conviction.
    Again. This action must fail upon the testimony, because the mittimus does not certify that the convict resided in Wells at the time of his conviction. Such a fact, thus certified, is indispensable to the maintenance of this action. There must be an express, explicit certificate of this fact, in addition to the usual and necessary contents of a legal mittimus. This the statute clearly requires.
    In this case the mittimus contains no such certificate. This statute should be rigidly construed. Tt is, to say the least, of doubtful validity when tried by the constitution of the State, for its tendency is to impose the burden of supporting quasi paupers upon towns, without any previous notice of their liability, or privilege of controverting the same, upon the shallow judgment or vicious caprice, or dishonesty, of some facile justice, many of whom are not distinguished for vigor of mind or incorruptible integrity.
   The opinion of the Court was drawn up by

Wat/con, J.

An Act of the Legislature, passed in 1858, (c. 37, § 2,) provides that when any boy between the ages of eleven and sixteen years, is convicted of any one- of the offences therein described, he may be sentenced to the reform school; and that "the expense of transporting such boy to the reform school and of his subsistence and clothing during his imprisonment, shall be defrayed by the city or town where such hoy resides, if within this State, otherwise by the city or town where the offence is committed.”-

This action is to recover for expenses thus incurred; and it is objected that the action cannot be maintained, because the justice did not certify in his mittimus that the boy resided in the defendant town at the time he was convicted. The third section of the Act above referred to provides, that "it shall be the duty of the justice, before whom any boy is convicted, to certify, in his mittimus, the city or town in which such boy resides, if known; and that such certificate shall in all cases be sufficient evidence, in the first instance, to charge such city or town with the expense of such boy, not exceeding one dollar per week.”

Do these provisions have reference to the boy’s residence at the time of committing the offence, or at the time when he is committed to the reform. school ? We are satisfied that the. statute has reference to the latter; and if, after having committed an offence, and before being committed to the reform school, a boy should change his residence, it is the city or town where the boy resides when committed to the reform school, and not the city or town in which he may-have resided when he committed the offence, that is thus made liable for his support.

The justice certified in his mittimus that when the offence was committed the boy resided in Wells, but he omitted to certify where he resided at the time he committed him to the reform school. Is this omission a fatal objection to the plaintiff’s right to recover ? Clearly not. The right to recover is absolute, while the making of the certificate is conditional, depending upon the knowledge of the magistrate. Why the justice omitted to make the latter certificate does not appear. It may have been because he did not know where the boy then resided, in which case it was no omission ot duty. Such omission would not authorize the Superintendent to assume that the commitment was illegal, and to refuse to receive him into the reform school; and, having received him, the law is imperative that the city or town where he resides, if within this State, at the time of such commitment, shall defray the expense of transporting him to the reform school, and of his support while there, not to exceed one dollar per week. Such certificate, if made, is one sufficient mode of proving the fact, in the first instance, but, in the opinion of the Court, it is not the only legal mode. The fact may be proved by any other competent evidence, in which case the plaintiff will be entitled to recover the same as if such a certificate had been inserted by the magistrate in his mittimus.

Such being the opinion of the Court upon the questions presented for consideration, by the agreement of the parties, the action is to stand for trial.

Appleton, C. J., Rice, Davis and Kent, JJ., concurred.  