
    Thomas Kittredge versus The Inhabitants of Newbury.
    Where a pauper had immediate need of a surgical operation, m a town in -which he was not legally settled, and the same was performed by a surgeon not belonging to such town, without being requested by the overseers of the poor, the town was holden not liable ; and the surgeon not having made a demand within three months, it was holden, that the town would not have been liable, if he had been an inhabitant of the town.
    This was an action of assumpsit for surgical aid rendered to one Thomas Dennett, a poor person belonging to the town of Newburyport, but having need of immediate relief in Newbury.
    
    Trial was had upon the general issue before Putnam, J., at the last April term at Ipswich; when it was in evidence that the said Dennett was a boy, who worked at a woollen manufactory in New-bury ; and received an injury from the explosion of some gunpowder there, which rendered it necessary to amputate his leg immediately, and before there would have been an opportunity to apply to the overseers of the poor of Newbury for their directions; that the plaintiff performed the service at the request of the attending physician ; and that the same was reasonably worth the sum demanded. It was also proved that the plaintiff gave notice of his claim to, ■ and demanded payment of it from, the overseers of the poor of Newbury, within two years, * but not within three months, after the service was rendered. But it was in evidence that one of the said overseers was informed of the situation of the said Dennett, and that he was in distress, and stood in need of immediate relief, within ten days after he was wounded. The said overseer, however, testified that he did not understand that any claim was then intended to be made against the town, or any application to him as an overseer, and that he gave no notice of the information he had received to the board of overseers.
    The defendants contended, at the trial, that the plaintiff, not being an inhabitant of Newbury, but of another town, never had any right of action against them; that, if he had, he was bound to notify them within three months, that they might have notified and recovered of the town of Newburyport, where the pauper had his legal settlement; and that towns are not liable, even to individual inhabitants, until after notice.
    The plaintiff gave no evidence of any express promise, but contended that the defendants were bound by law to afford immediate relief to persons in distress; and that the aid rendered by him in this case was under such circumstances as would raise a promise, by implication, on the part of the defendants to pay.
    A verdict was taken for the defendants, which was to be set aside, and they were to be defaulted, if the whole Court should be of opinion that the plaintiff was entitled to recover upon the foregoing evidence; otherwise judgment was to be according to the verdict.
    
      Cummings, for the plaintiff,
    argued that the defendants were bound by law to furnish the necessary aid and relief to this pauper, under the circumstances of the case; and the plaintiff having done the service, which they were under legal obligations to see performed, there was a sufficient consideration to support the action, although no request be shown to have been made by the defendants.  From the cases referred to, it will appear that the plaintiff
    had a legal right of action * against the defendants, upon the performance of the service; and as to the requisition of notice within three months, it has no application to a case like the present, but wholly relates to actions between towns. 
    
    
      Moseley, for the defendants.
    The whole obligation on towns to support or relieve paupers is grounded on the provisions of our own statutes ; and every person or corporation, claiming remuneration on such account, must bring their case within those statutes. The plaintiff, not being a citizen' of Newbury, has no right of action against the defendants, the provision, in case of relief by an individual, being confined to inhabitants of the town. But even this provision has no operation until after notice and request made to the overseers.  That notice should be in season, if defendants were liable at all, for them to have their legal remedy over against the town of the pauper’s settlement.
    
      
       l H. Black. 90, Jenkins vs. Tucker —-8 D. & E. 308, Exalt vs. Partridge & Al. 3 Esp. Rep. 89, Houlditch & Al. vs. Milne. — 3 B. & P. 253, Wennall vs. Ad.
      
    
    
      
      
        Stat. 1793, c. 59, § 9.
    
    
      
       2 Mass. Rep. 547, Cargill vs. Wiscasset. — Ibid. 567, Doggett vs. Dedham 12 Mass. Rep. 333, Mitchell vs. Cornville.
      
    
   Per Curiam.

Towns are under no moral obligation to pay for

the support or cure of paupers; especially of such as have their legal settlement in other towns. The legal obligation is created by statute, and it exists, and can be enforced, only according to the provisions of the statute. The town is answerable to an individual only when the overseers have been applied to, and until they shall furnish the supply.

The case of a sudden necessity for medical or surgical relief seems to have been overlooked by the legislature. The remedy now is, for the person applying to the physician or surgeon to pay him, and if an inhabitant, to demand a reimbursement from the town. Oases of this nature, however, seem to require a further interposition of the legislature.

But the plaintiff in the present case has no right of action, even if the supposed legal obligation of the defendants to provide this relief had been made out. For in that case he should have made his demand seasonably for the defendants to have had their remedy against the town of Newburyport, where the pauper had his * lawful settlement. Not having done this, he is not even in an equitable point of view, entitled to recover

Judgment on the verdict.  