
    Nathaniel Miller versus The Inhabitants of Somerset.
    A surgeon, who had performed a difficult operation on a pauper, not resident in the town where he had his settlement, without the application of the overseers of such town, has no right of action therefor against the town.
    This was an action of assumpsit by the plaintiff, a surgeon, and an inhabitant of Franklin, in this county, for a surgical operation performed on a pauper, having his settlement in Somerset; and it was submitted to the determination of the Court upon the following facts, agreed by the parties : —
    * Joseph Simmons, the pauper,
    had his legal settlement in the town of Somerset at the time of the operation hereafter mentioned ; and that town furnished him partial support, by paying his father, with whom he resided in Rehohoth, fifty cents per week, by agreement, towards his board, he being at that time a minor. The said Joseph had for many years labored under the malady of a stone in the bladder, and from this cause was very weak and'much emaciated
    In the month of December, 1812, on a consultation of several respectable physicians, it was their opinion that the only chance to preserve his life was speedily to perform on him the operation of lithotomy; which operation was the next day performed by the plaintiff. In the usual time, after considerable additional expense to the defendants, the said Joseph was relieved from his said malady by the said operation, and restored to health.
    The day preceding the performance of said operation, application was made to the chairman of the overseers of the poor of Somerset, stating the opinion of the consulting physicians, and the necessity of the operation being speedily performed upon the said Joseph, and requesting the consent and aid of the overseers. But the said overseers refused to consent, or to do any thing about the matter, until the question should be laid before the town, and their opinion taken thereon, which the said chairman proposed to do at an ad journed town meeting thirteen days afterwards.
    The selectmen of Somerset afterwards, by a letter to the plaintiff, stated that the town would not allow him any thing, but that they would make him a present of twelve dollars for his services on that occasion, as an act of humanity for the relief of the boy.
    The plaintiff travelled from his home, in Franklin, thirty-five miles, to perform said operation, at the .request of a brother of the pauper, there being no physician or surgeon in the town of Somerset who was accustomed to perform operations of this kind.
    If, upon these facts, the Court should be of opinion * that the plaintiff was entitled to recover in this action, the defendants were to be defaulted, and the plaintiff’s damages to be settled by referees; otherwise the plaintiff was to become nonsuit.
    
      Hastings, for the plaintiff.
    The defendants probably rely on the decision in the case of Mitchell vs. Cornville; 
       but the present case stands on distinct ground from that. In that case, any person might have furnished the relief as well as Mitchell. But in the present case, none but a surgeon could have performed the operation, and the case finds that there was no competent one in Somerset. In that case, it seems to be granted that Mitchell might have had his remedy against the adjoining town of Garland. But in the present case, the pauper was virtually resident in Somerset, within the case of Marlborough vs. Rutland, 
       since he was supported under contract with that town.
    It must be taken for granted that the legislature intended to make provision that every poor person in distress within the commonwealth should have the necessary relief. As, in the present case, there was no inhabitant of the town capable of affording it, the plaintiff is entitled to recover on the common principles of humanity, although the case may not be within the letter of the statute, or of any decision upon its construction.
    If a case of this kind is inadvertently omitted in the statute, the plaintiff may entitle himself by the common law. At common law, the overseers are personally bound for the relief of casual poor as the towns are by our law ; and in the case of Simmons vs. Wilmott & Al. 
       it was decided that, if a person, not a parish officer, takes care of a person coming within that description, and for whom the parish officers would be liable to provide, he shall recover against them the expenses incurred on such an occasion. Oui statute makes no distinction between casual and other paupers. 
    
    Richardson, for the defendants,
    did not rely wholly on the case of Mitchell vs. Cornville, although he thought it a strong case for the defendants. The plaintiff, to entitle himself to a recovery, must show an * express promise of the defondants, by their overseers, or he must bring himself within the provisions of the statute. He has proved no express promise, and the statute gives no action to one not an inhabitant of the town in which the pauper has his settlement, against such town. If the plaintiff was an inhabitant of Rehoboth, he might have a legal claim against that town ; but under the circumstances of this case, the law has made no provision for him, and he is without remedy.
    
      Hastings, in reply.
    This case of a necessary surgical operation is not within the provisions as to the relief of ordinary wants, and giving the right of action against the town where the pauper may be casually found. The overseers had no right to object to the performance of an operation immediately necessary to preserve the life of a human creature. It is most extravagant that it should be in their power, for the sake of saving a paltry charge upon their town, to cause a pauper’s death with impunity, or tax others, of more humanity, for the means of preserving his life.
    
      
       12 -¥«ss. Iiep. 333.
    
    
      
       11 Mass. Rep. 483.
    
    
      
       3 Esp. Rep. 91.
    
    
      
       3 B. & P. 250, note. 50, 51. — Bull N. P. 147, Watson vs. Turner. — I Selw. N. P
      
    
   Parker, C. J.

The difficulty in this case is, that the statute of 1793, c. 59, which alone creates the obligation on towns to support poor persons lawfully settled therein, has provided no such remedy as this action contemplates. The right of action is given only to such towns as afford the relief pursuant to their duty, as prescribed in the ninth section of that statute, and to such inhabitants as may have furnished the relief, when the overseers of the town primarily or subsequently liable shall refuse.

This is a case probably not foreseen by the legislature, where a difficult operation is to be performed, and no skilful surgeon lives within the town in which the pauper resides, or within that in which he has his settlement.

It is an unfortunate omission. But it is not in our power to supply it. For towns are not liable, by the common law, to support paupers; nor does any promise arise in law; because there is no duty created, except what is prescribed by the statute itself.

Plaintiff nonsuit.  