
    Sedgley vs. The inhabitants of Bowdoinham.
    By the terms of an act dividing the town of B. and incorporating a part of it as the town of R. the latter was required to support their proportion of all paupers then belonging to said town of. B. which it was agreed was 5-13ths. By a second act, the legislature undertook to change the proportions of expense between said towns, relieving the new town from much of its liability as established by the act of incorporation. Alter the passage of the last, and prior to any judicial construction of it, J. S. contracted with the town of B. ■ to support the poor of said town for one year, he having all the income and benefit belonging to them during said term. And he accordingly supported them, including the 5-13ths belonging to the town of K. according to the first act, and received the sum stipulated in the contract. Afterward the second act was decided to be unconstitutional, and the town of B. in a suit brought for that purpose, recovered of the town of R. 5-I3ths of the expense for supporting the poor during the year of J. S’s. contract. The Court held, that J. S. was not entitled, by the terms of his contract, to the sum thus recovered by the town of B.
    This was an action of assumpsit for money had and received, and came to this Court on exceptions filed to the opinion of Whitman C. J. in the Court of Common Pleas. On the trial in the Court below, the plaintiff read in evidence a bond dated March 7, 1825, given by him to the defendants, a part of the condition of which was as follows : “ The condition of this ob- “ ligation is such, that whereas the said Robert Sedgley has “ taken the paupers of the said town to support for one year “ from the 7th day of May next, for the sum of three hundred “ and forty-seven dollars, — and he is to have all the income “ and benefit that belongs to said poor for the term of said year, “ — and he is to indemnify the town of all hind of pauper ex“penses whatever for said year,” &c.
    It further appeared in evidence, that in Feb. 1823, there was a division of the town of Bowdoinham.by legislative enactment, and a part thereof was incorporated by the name of Richmond; — one of the provisions of the act of incorporation being, that Richmond should maintain its relative proportion of the paupers then supported by Bowdoinham, which was admitted to be five thirteenths.
    
    
      Feb. 15, 1825, an additional act was passed by the legislature, after notice to the town of Bowdoinham, materially changing the proportion of liability as established in the act aforesaid, lessening that of Richmond.
    
    At the May term, 1828, of the Court of Common Pleas, Bowdoinham commenced an action against Richmond, to recover the latter’s proportion of expense for supporting the paupers aforesaid, during the years of 1825 and 1826, as established by the first act. This suit was contested by Richmond, but unsuccessfully, and Bowdoinham recovered the amount claimed.
    It was agreed that all the paupers of Bowdoinham, including the above five thirteenths, were supported by the plaintiff during the year 1825; and that the defendants had paid him the sum named in the bond, to wit, $347, refusing to pay him the sum received of the town of Richmond as aforesaid, by way of reimbursement, for supporting said five thirteenths in 1825. — And for the recovery of this sum, the present suit was instituted.
    Upon the foregoing facts Whitman C. J., in the Court below, was of opinion that the action was not maintainable, and directed a nonsuit, to which opinion exceptions were filed and allowed.
    
      Allen, for the plaintiff,
    argued that a reasonable construction of the bond would have required the plaintiff to support only the paupers belonging to Bowdoinham, not those belonging to Richmond, the language being, “ having taken the pau“pers of the said, town.” But that if the construction should be otherwise, still the plaintiff is entitled to recover the amount received by the defendants of Richmond, under the provision of the bond which gives to him, “ all the. income and benefit “ that belongs to said poor for the term of said'year.”
    In regard to the construction of the contract he argued further, that it was manifest the plaintiff was to tahe the place of Bowdoinham for that year in reference to the poor. He was to indemnify the town from all pauper expenses, and was to have all the advantages belonging to the tow.n. The sum therefore recovered by the defendants of Richmond, for the expense incurred by the plaintiff in supporting the poor of Richmond, should be considered as recovered for the plaintiff’s use. Such an effect may reasonably be supposed to have been contemplated by the parties. By the first statute Richmond was liable to 5-13ths —■ these, Richmond might take numerically, or such as would be equal to 5-13ths — it was probable that they would do one or the other, and this would be fairly anticipated by both the parties. If Richmond had then taken home 5-13ths (which they would have done but for the law of 1825,) no question would have arisen; — the plaintiff would have been relieved from their support and Richmond would have borne it, but Bowdoinham would have gained nothing by the transfer. Bowdoinham would then as now have paid $347. Richmond would have supported 5-13ths and the plaintiff 8-13ths, the latter deriving the sole benefit of the transfer.
    The defendants’ construction of the contract is attended with this absurd consequence. If Richmond take their share of the paupers and support them at home, the plaintiff is relieved. If they support them in Bowdoinham, they pay for their support, not however to him who would be relieved if they supported their poor at home, but to Bowdoinham who has incurred no additional expense by reason of the paupers being kept in that town.
    Again, suppose Richmond had taken home their 5-13ths, would Bowdoinham have had a right of reduction from the $347 which they had agreed to pay the plaintiff? If not, then the plaintiff, who alone has been subjected to increased expense by their not doing so, ought to have the benefit of the sum recovered by Bowdoinham.
    
    That Richmond would take and support at home their 5-13ths might fairly have been presumed at the time this contract was made, — for the second act, though passed, had not been published, and ultimately proved to be a nullity by the decision of this Court.
    But the defendants have expressly assigned to the plaintiff all the remedy- they have over against Richmond. By the contract the plaintiff is to have “ all the income and benefit that he- 
      “ longs to said poor.” This would include pensions should the paupers be entitled to any, — or claim upon the State had there been any State paupers as formerly, — or claims against other towns if he should discover that any of the paupers had a legal settlement there. W hy not, then include also the present claim ?
    Suppose, on the other hand, an additional number of paupers should have been unexpectedly thrown on Bowdoinham during the plaintiff’s year, would the defendants have been liable to an increase of the sum of $347 ? Surely not. The rights and remedies then between them, ought to be mutual and reciprocal. Saco v. Osgood, 5 Greenl. 231.
    
    
      Bowman, for the defendants.
    What was the effect of the first statute and the settlement under it, between Bowdoinham and Richmond ? Until the paupers belonging to Richmond, had been removed there, they must be considered as belonging to Bowdoinham. This was the case at the time the contract between these parties was entered into. The paupers being thus fixed there, the plain and obvious terms of the contract, required the plaintiff to support them.
    But further, by the last act, the liability of supporting these paupers, was transferred to Bowdoinham. At the time of the making the contract, the parties must have known of the passage of this act, and must have contracted in reference to it. If the law was constitutional, the plaintiff must have well understood that he was bound to support all the paupers. If supposed to be unconstitutional, would he have bought a lawsuit without making any allusion to it in any way in the contract ?
    The unconstitutionality of that act has been established, but that decision can have no effect upon the contract between these parties. — It settles the rights and obligations of the two towns as to this matter alone.
    The argument on the other side drawn from the absurd consequences which would result from our construction of the contract, in case of a removal of the paupers from Boivdoinham by Richmond, may be answered by denying the right of Rich
      
      mond to cause any such removal — the supposed case therefore can never exist. Bowdoinham is to support the paupers, and Richmond is to pay 5-13ths of the expense.
    He argued further that the “ income and benefit” spoken of in the bond, related merely to the labour, &c. of the paupers, and not to any such case as the claim presented in this action.
   •The opinion of the Court was delivered, as drawn , up by

Mellen C. J.

By the 5th section of the act of February 10th, 1823, incorporating the town of Richmond, formerly a part of the town of Bowdoinham, it is enacted “ that the said town of “ Richmond shall be held to support their proportion of all pau- “ pers, now supported, in whole or in part, by Bowdoinham.” The section then directs how the proportion was to be' ascertained, in obedience to which it was ascertained Bowdoinham was to pay eight thirteenth parts, and Richmond five thirteenth parts of such expense. By the act of February 5th, 1825, the Legislature undertook to change the proportions of expense, as ascertained under the former act; and to relieve Richmond from the liabilities thus existing, and declared that from and after the first day of May then next, Richmond should be holden to support all paupers who resided, on that day, within the limits of the town of Richmond: and that the liabilities and obligations of each of said towns, as to all others who might become chargeable, should remain as though the special provisions of the act of 1823 had never existed. If this last act had produced its intended effect, the liabilities of Richmond would have been essentially lessened, it is said, to one quarter part, at most, of the established proportion. But this Court has pronounced the last act unconstitutional, in the case of Bowdoinham v. Richmond, 6 Greenl. 112. The claim of the plaintiff in this case is resisted on the ground that he by his bond, dated March 7, 1825, bound himself to support the paupers of Bowdoinham for a certain sum, for one year, being the same year, in which he supported them, and.for apart of which expense, he has brought this action. It is admitted that the sum mentioned in the condition of said bond, as the agreed compensation, has been paid by the defendants to the plaintiff, so that the only question in this cause depends, for its decision, on the construction of the bond. It bears date about one month after the unconstitutional act was passed. When Richmond petitioned the Legislature to pass the last act, Bowdoinham was duly notified; but gave themselves no concern about it. Sedgley is one of the inhabitants of Bowdoinham. Such being the facts, both parties must be considered as having knowledge of the passage of the last act; but they could have had no knowledge that its provisions were unconstitutional, for that was not decided until 1830. What, then, must be considered to be the law, in reference to which, the condition of the bond was made, and the parties to the bond acted in making their contract? We think they must be deemed to have made their contract, in reference to the last act, and the state of the respective liabilities of the two towns, in relation to the support of paupers, as established by that act. The plaintiff by his bond engaged to support, for one year, the paupers of the said town for $347 ; but he was to have the income and benefit that belonged to said poor for the term of one year, and was to indemnify the town from all kind of pauper expenses whatever for said year. What is the true meaning of income and benefit belonging to said poor, as used in the foregoing sentence ? We apprehend, they mean the benefit of their labour and assistance during the year. At any rate, it can never be construed to mean any portion of the money received by Bowdoinham of Richmond, which is claimed in this action, as has been contended by the plaintiff’s counsel; for such money is not a benefit belonging to any of the paupers, but to the town of Bowdoinham. By the bond, the plaintiff agreed to support the paupers of that town for one year, for a certain sum ; which means all their paupers, according to the last act, in reference to which he contracted ; that sum he has received and is not entitled to demand any more. The action cannot be maintained. The exceptions are therefore overruled.

Judgment for defend,ants.  