
    The Inhabitants of Roxbury versus The Worcester Turnpike Corporation.
    A town having kept in repair a part of a turnpike road, which was laid out over an ancient county or town road, brought an action of assumpsit, on the ground of an implied promise, against the turnpike corporation, to recover the expenses incurred. Held, that the action would not lie.
    This was an action of assumpsit brought to recover the amount of expenses incurred by the plaintiffs, at different times, from the year 1806 to the year 1821, in keeping in repair a way in Roxbury, which, as they alleged, the defendants were bound to repair as a part of their turnpike road. The defendants pleaded the general issue.
    At the trial, in February term 1823, before Jackson J., it appeared that a committee appointed pursuant to the act incorporating the turnpike corporation, (St. 1805, c. 67,) had laid out one end of the turnpike road over an established highway or town way in Roxbury. After the turnpike road was completed, the defendants caused an arch to be erected at what they considered or called the end of the turnpike road, which arch excluded the part that had before been a highway or town way; and it was on this part that the expenses in question were incurred. The plaintiffs had, for many years after the laying out of the turnpike road, contmued to repair this part of the way, as they had previously done.
    It was not suggested that there was any express agreement between the parties, but the plaintiffs relied on the fact, that the defendants were bound by law to repair this road, and that the plaintiffs had repaired it under a mistaken belief that they were legally bound to do so. And it was alleged on the part of the plaintiffs, that this mistake was owing to some contrivance or other conduct of the defendants; but there was no evidence offered on this point, except the fact of placing the arch as above mentioned.
    A nonsuit was entered, which was to be taken off, if in the opinion of the Court the action could be maintained on the facts above stated.
    
      Churchill, for the plaintiffs,
    now moved that the nonsuit should be taken off. He contended that there was a sufficient consideration for a promise. The defendants were bound by law to keep this part of the road in repair, it being a part of the turnpike road. St. 1804, c. 125, § 6, 14. There can be no objection to the action, either for want of privity, request or promise. The defendants being under a legal obligation to make the repairs, and the plaintiffs having done it for them, no request was necessary ; the law creates a privity and a promise. Moses v. M'Ferlan, 2 Burr. 1010 Hall v. Marston, 17 Mass. R. 576 ; Kittredge v. Inhab Newbury, 14 Mass. R. 450 ; Jenkins v. Tucker, 1 H. Bl. 90 ; Exall v. Partridge, 8 T. R. 308 ; Simmons v. Wilmott, 3 Esp. 91 ; Wennall v. Adney, 3 Bos. & Pul. 247 ; Loring v. Bacon, 4 Mass. R. 576 ; Andover &c. Turnp. Corp. v. Gould, 6 Mass. R. 43. The plaintiffs are entitled to recover, because the defendants must have known that the plaintiffs were working for them ; Farmington Academy v. Allen, 14 Mass. R. 176 ; and because the repairs were made under a misapprehension of the facts. Garland v. Salem Bank, 9 Mass. R. 414. A corporation created for its own benefit stands on the same footing with an individual, and assumpsit is the proper form of action in the present case. Mower v. Leicester, 9 Mass. R. 250 ; Hayden v. Middlesex Turnp. 
      
      Corp. 10 Mass. R. 400 ; Riddle v. Merrimack Locks &c., 7 Mass. R. 187, 188.
    Harrington, for the defendants,
    said the road on which the repairs were made was never a part of the turnpike road, and that if any thing was to be inferred from the erecting of the arch, it was that the turnpike road began from the arch. An ancient highway cannot be made a turnpike road, for the right of compelling passengers to pay toll is essential to the definition of a turnpike road ; whereas our statute (1804, c. 125, § 3) prohibits the taking of toll oh a county or town road before established. But even if the law would permit a part of an old road to become a part of a turnpike road, the town must remain liable to keep it' in repair. If the rights and privileges of the inhabitants are preserved to them, their liability to repair ought not to be abridged. In England, by St. 13 Geo. 3, c. 84, the expenses of repairing a turnpike road are apportioned between the parish through which. it runs and the turnpike company. The acts of the plaintiffs were a voluntary courtesy, done without request, and therefore will not sustain an action of assumpsit. Lampleigh v. Braithewaite, Hob. 105 ; Bull. N. P. 145 ; Bosden v. Thinne, Yelv. (Metcalf’s ed.) 41 and note. Such an action is an unnecessary remedy, since the statute of 1804, c. 125, provides, that when a turnpike roajl shall be out of repair, the corporation may be indicted, (§ 6,) and the gates may be set open, (§ 14.) If this action can be maintained, it must be on the ground that the defendants are under a moral obligation to indemnify, the plaintiffs. A moral obligation is a good consideration for an express promise, but not for an implied one. 1 Fonbl. on Eq. 345 ; Atkins v. Banwell, 2 East, 505. In pauper cases, where a legal obligation is the foundation of an assumpsit without an assent on the part of the defendants, the statute gives the action ; and if the plaintiffs neglect to give notice as required by the statute, their right of action is gone.
    Churchill, in reply. These repairs could not be considered as a voluntary courtesy, as it is apparent that there was no intention on the part of the plaintiffs to make a gift of their services. There are many cases in which a specific mode is provided for compelling a party to perform his duty, in which nevertheless he will be liable to the person who performs it for him.
    
      
       The position that a moral obligation is a good consideration for an express promise, is too broad. It must be limited in its application to cases where a good or valuable consideration has once existed. Mills v. Wyman, 3 Pick. 207; Cook v. Bradley, 7 Conn. R 57; Littlefield v. Shee, 2 Barn. & Adol. 811; Yelv. 41 a, note 1; Parker v. Carter, 4 Munf. 273. See Chandler v. Neale, 2 Hen. & Munf. 124 ; Tubman v. Anderson, 4 Har. & M‘Hen. 357; Smith v. Ware, 13 Johns. R. 257 ; Edwards v. Davis, 16 Johns. R. 281, 283, note; Greeves v. M‘Allister, 2 Binn. 591. Contrà, Glass v. Beach, 5 Vermont R. 172; Barlow v. Smith, 4 Vermont R. 144.
    
    
      
       1 Saund. 264, n. 1. See Commonwealth v. Worcester Turnp. Corp., 3 Pick. 327; M‘Morris v. Herndon, 2 Bailey, 58; Bartholomew v. Jackson, 2 Johns. R. 28 ; Dexter v. Hazen, 10 id. 246; Hort v. Norton, 1 M'Cord, 22; Hill v. Featherstonehaugh, 7 Bingh. 569 ; post, 507, n. 2.
    
   Parker C. J.

said in substance, that the Court were of opinion that the action could not be sustained ; and upon the grounds taken in the objections, that the turnpike company were bound to keep in repair the road designated in their act of incorporation, and if any part of it was out of repair, they were liable to an indictment, but that they having neglected to make repairs, the inhabitants of Roxbury voluntarily continued to do what they had been in the habit of doing, without giving any notice to the turnpike corporation. It is said that the arch was erected for the purpose of deception. We can hardly imagine, that where so many persons were interested, they should be deceived by that circumstance. We should rather think it was a notice to the town, that the corporation did not intend to repair this part of the road. It is hardly possible to raise an implied promise in the case. The repairing of the road seems to have .been a voluntary courtesy done with a full knowledge of the facts.

Motion to take off the nonsuit overruled.  