
    The Inhabitants of Belfast versus The Inhabitants of Leominster.
    Notwithstanding the proviso in St. 1793, c. 59, $ 9, an action will lie against a town, after two years, upon a verbal express promise of the overseers to pay the expenses incurred in supporting a pauper legally chargeable to such town: such a promise being barred only by the general statute of limitations.
    The separation of Maine from Massachusetts was held not to affect the rights of a town in Maine, to which such promise was made before the separation.
    The declaration contained two counts; the first in special assumpsit for the support of a pauper named Dolly Keaton, formerly Dolly White, and her children ; the second in indebitatus assumpsit for money paid, laid out, and expended.
    On the trial, the first count was abandoned, because the suit was not commenced within two years after the cause of action arose.
    To support the second count, the plaintiffs proved, that they had supplied the paupers with necessaries from December 1818, to the 15th of March, 1820: that on the 14th of Janu ary, 1819, the overseers of Belfast addressed a letter to the. overseers of Leominster, giving them notice that the paupers had become chargeable, and requesting them to remove them, and pay the expenses which had arisen ; to which the overseers of Leominster, by a letter of the 9th of February, 1819, made answer, that they were unable to say whether the pou • pers had a settlement in Leominster or not, and therefore refused to remove them, or pay any expenses for their support ' that, afterwards, an account of the expenses to May 1819 was made out, amounting to ninety-two dollars, and that the overseers of Leominster promised verbally to pay it, if the overseers of Belfast would furnish them with evidence that the pauper’s settlement was in Leominster : that such evidence was furnished, and that the overseers of Leominster, in December 1819, paid fifty dollars upon the account, and then, and also on the 9th of March, 1820, promised to pay the remainder.
    The action was commenced in August 1821.
    A verdict was taken for the plaintiffs, subject to the opinion of the Court on the question, whether the action could be maintained or these facts ; the defendants contending, that as more than two years had passed since notice was given to Leominster, that town was discharged, and that the doings or declarations of the overseers would not prove a promise by the town ; and, also, that by the separation of Maine from Massachusetts, the plaintiffs had lost their remedy.
    Kendall, for the defendants.
    In the act for the separation of Maine, no provision is made for cases of this kind. It is admitted, that in general the severance of an empire does not destroy vested rights ; Kelly v. Harrison, 2 Johns. Cas. 29; Jackson v. Lunn, 3 Johns. Cas. 109; but this case is an exception to the general principle. The plaintiffs do not bring themselves within the statute of 1793, c. 59, § 9, which they must do strictly, in order to recover. That statute did not contemplate a division of the State. If there was a vested ight, it was on the condition that Belfast should remain a town of Massachusetts, for no town out of this State can maintain a claim against a town within the State, for the expenses of supporting a pauper. The reason why severance of a state does not affect a vested right — as, for instance, upon a bond for money lent — is because locality forms no part of the ground on which such right is founded. There is no moral obligation in the present case. The demand resembles a claim for a penalty more than a contract for a valuable consideration. It is to be considered like a demand against the State treasury for the maintenance of a State pauper. And if the plaintiffs could not support such a claim against the State, as it is apprehended they could not, then they ought not to recover in this action. The burden of supporting these paupers is rather like a tax which Belfast must pay, than a debt which Leominster ought to pay. The State of Maine may now be deciding that towns in Massachusetts shall not recover, in similar cases, against towns in Maine : which shows, that the subject should have been a matter of regulation, in the act of separation, if it were intended that there should be any remedy.
    No notice having been given within two years before the action was brought, it is a question whether the overseers of the poor had power to bind the town by their promises. By virtue of the statute of 1793, c. 59, § 2, they must have power to contract for the support of the poor ; but there is a material distinction between past and future expenses. A power to bind the town for past expenses is not required, or the statute points out a definite course for the remedy of the town in which the expenses are incurred. An express promise is unnecessary, and therefore not binding. It can never be expedient, that the overseers should have this power ; for if they can bind the town where three years have passed, they may after the lapse of twenty ; and if they can bind it in this case, they may in regard to the settlement of a pauper, and without the notice required by law. The overseers of the poor are creatures of the statute, and cannot go beyond it.
    The plaintiffs must view this promise either as a new contract, or as taking the case out of the statute of limitations. It is not the first, because there is no new consideration. Where there is an implied promise, by statute or by the common law, an express promise does not constitute a new cause of action. Neither does this promise take the case out of the statute of limitations ; for no such thing can be done. There is a difference between the general statute of limitations, and the proviso in the statute of 1793, c. 59, § 9. The reason of the statute of limitations is to prevent perjuries ; the principle upon which it is founded, is, that lapse of time creates a presumption of payment. Baxter v. Penniman, 8 Mass. Rep. 133; Fiske v. Needham, 11 Mass. Rep. 452. But this proviso was not intended to guard against perjuries, or to create a presumption of payment. The object of it was to cause a speedy adjustment to be made in pauper cases. Public officers are often dilatory, especially where they are chosen occasionally. Overseers of the poor are changed frequently. It is difficult to prove notice after the lapse of a long time. Such cases often relate to circumstances which have taken place long before, and aged witnesses must be called ‘ so that a loss of testimony may be apprehended.
    The proviso will be taken notice of by the Court, without being pleaded ; because it contains, not a limitation, but a condition, that the action shall be brought within two years after the incurring of the expenses. Hallowell v. Harwich, 14 Mass. Rep. 188. The plaintiffs must then bring themselves within the statute. A promise cannot revive the candi tian when it is extinguished ; as it is in the present case. An acknowledgment of a debt by an executor or administrator will not sustain an action against such executor or administrator after four years from the time of his appointment, because the statute ol 1791, c. 28, was designed to produce a speedy settlement of estates, in order to quiet heirs and legatees. Brown v. Anderson, 13 Mass. Rep. 203; Dawes v. Shed, 15 Mass. Rep. 6. So this proviso, which was made with a similar design, has been construed strictly, and the promise of the overseers must be taken to have been made with a reference to this proviso.
    
      J. Davis, junior, for the plaintiffs.
    In every thing relating to the poor, the overseers are the agents of the town, and it was the intention of the legislature to confer upon them all the powers which should be useful in carrying the statute of 1793, c. 59, into effect. There is no greater hazard in permitting them to make a promise after the expenses for the support of the pauper have been incurred, than in allowing them to contract for his future support. In Salem v. Andover, 3 Mass. Rep. 436, and Dalton v. Hinsdale, 6 Mass. Rep. 502, it is intimated, that an express promise by a town would be binding ; and, from the circumstances of those cases, the Court must speak with reference to a promise of the town by its agents, the overseers of the poor. The consideration of the promise, in the present case, was the legal obligation of Leominster to compensate Belfast for supporting the paupers ; and another consideration was, the expense of procuring evidence to satisfy Leominster in regard to their settlement.
    With respect to the limitation of two years, a material distinction .exists between an action in this form, and an action founded upon the St. 1793, c. 59, § 9. In the latter, the plaintiffs must have averred and proved the legal settlement of the paupers, and a notice that they had become chargeable ; and by a judgmen: against the defendants they would be estopped, in any future action between the same parties, from contesting the settlement ; but in this action no such allegations are necessary, and no such consequence will result from the judgment.
    In regard to the separation of Maine, this case does not differ . in principle from those cited by the defendants’ counsel from Johnson’s Reports.
   At April t ,rm 1823, Putnam J. read the opinion of the Court, as prepared by

Parker C. J.

The several objections, which have been in geniously urged against the verdict in this case, have been considered by the Court, and they have come to the following result.

The separation of Maine from this Commonwealth can have no effect upon the rights of the parties, they being vested before the separation, so far as relates to the expenses of maintaining the pauper antecedent to the separation.

The action not being commenced within two years after notice given to the defendants, the count upon the statute xyas properly abandoned by the plaintiffs. But an action upon an express promise will lie, notwithstanding the lapse of time, such a promise being barred only by the general statute of limitations. The obligation created by the statute to support paupers is a good legal consideration for an express promise. If upon notice to a town liable, they should yield to the demand, and ask for time to pay, or their authorized agent should give a promissory note for the amount, it surely would not be an objection to an action upon such note, that it was not commenced within two years from the notice, as prescribed by the statute And a verbal promise, legally proved, is as effectual, to all legal oúrposes, as a promissory note.

The question then is, whether the case shows a promise bindng upon the inhabitants of the town. And this depends upon tne question, whether a promise made by the overseers of a town, to pay expenses actually incurred by another town for the support of a pauper legally chargeable to the town for which the promise is n.ade, is binding upon such town. And we think it very clear, that in such a case the overseers are made by law agents of the town, with power to bind their principal by their promise. The whole business relating to the support of paupers is left to the overseers ; they are to receive the notice ; and they may remove the pauper, at the expense of their town, witnout consulting the inhabitants, and, without doubt, may pay the demands of the town from which the pauper is removed, to prevent a suit. The very object of the notice is, that, from the information it contains, the overseers may satisfy themselves whether their town is chargeable or not, in order to avoid the expense of a suit. When they are so satisfied, if they have a right to pay the money, they have a right to gain time by a promise to pay. Their very neglect may fix the charge upon their town, and prevent it from defending against the claim. If they act corruptly, and, perhaps, if carelessly, the town will have a remedy against them. This very case shows the propriety of confiding such powers to the overseers ; for the town would have been sued, but for the readiness of the overseers to pay after being satisfied of the justice of the claim. The town surely would not wish now to set up the statute against the plaintiffs, when the delay was occasioned by a reliance upon the word of their authorized agents.

Judgment on the verdict. 
      
       The settlement of a pauper in Massachusetts, which was lost by a subsequent settlement gained in Maine before it became a separate State, did not revive by that event. Mendon v. Bellingham, post, 153. A person having a settlement in Massachusetts proper, but living in Maine at the time it was made a separate State, did not acquire a settlement in Maine by the separation. Middleborough v. Clarke, 2 Pick. 28. See Lapish v. Wells, 6 Greenl. 186, as to the construction of St- l-19, c. 36, § 1, in relation to the separation of Maine from Massachusetts : Damon's case, 6 Greenl. 148.
     
      
       The two years are to be computed from the delivery of the notice, and not from its date. Uxbridge v. Seekonk, 10 Pick. 150
     
      
       The overseers of the poor of a town may bind the town by a contract not to take advantage of any defect in a notice given by another town, that i pauper has been relieved. Hanover v. Eaton, 3 N. Hamp. R. 38.
     