
    The Inhabitants of Shrewsbury versus The Inhabitants of Boylston.
    In a statute referring to a vote of a town by a wrong date, the date may be rejected as surplusage, where the reference is clear without it.
    Where, previously to a division of a town, it was voted, that the old town should maintain A., an actual pauper, who would otherwise have been chargeable to the new town, and that each should maintain all future poor that “ have, do or shall gain a settlement in either of them,” it was held, that future paupers deriving a settlement from A. belonged to the new town 3 and that the old town might recover of the new one the expenses, including costs, which had been recovered of it by a third town for the support of such paupers, but that the new town, having had no notice of the action between the other towns, was not concluded by the judgment.
    This was an action of assumpsit for money paid by the plaintiffs for the support of Betsy Branscomb and her two children.
    The declaration averred, that these persons were in need of relief in the town of Augusta, in Maine, and that the plaintiffs • had been compelled to pay that town the sums which it advanced for the support of the paupers, with costs of suit The declaration contained also the usual money counts.
    By the act of March 1st, 1786, (St. 1785, c. 55,) for incorporating the northerly parish of Shrewsbury into a town by the name of Boylston, it is provided, that the poor of Shrews-bury shall be apportioned and supported “ according to the vote of the said town of Shrewsbury, passed the second day of January in the present year; ” and the plaintiffs claimed to recover, by virtue of this act and of the vote therein mentioned, all the charges which they had been compelled to pay for the support of the paupers.
    The town of Shrewsbury passed no vote on the second of January, 1786, relating to the poor, but by a vote of the twenty-eighth of November, 1785, it is, among other things, provided, that Persis Branscomb (whose settlement was in Shrewsbury by a residence within that part which now forms the town of Boylston) and her child (not naming him) shall belong to the first parish, now Shrewsbury, and certain other persons to the second parish, now Boylston ; “ and further, as to what poor in future may become chargeable to the town, that each parish shall maintain all those that have, do or shall Sa'n a settlement in either of them.”
    was proved, that Betsy Branscomb was the lawful wife of John Branscomb, who was the son of Persis, from whom he had a derivative settlement at the time of the incorporation of Boylston. Persis was living in Shrewsbury with one child, named Christopher, and they were both supported by the town. John had been previously bound out by the selectmen, and was then living in the service of his master.
    
      Wilde J., who tried the cause, was of opinion, that the defendants were chargeable with the support of the paupers, and instructed the jury to find for the plaintiffs, if the facts before stated were proved to their satisfaction.
    It appeared, that in an action brought by the town of Augus" ta against the town of Shrewsbury, in which the sum of one hundred and forty dollars was claimed for the support of the paupers, Shrewsbury made a defence, and in a trial by jury " reduced the claim to about eighty dollars. The defendants’ counsel objected against the right of the present plaintiffs to recover for the costs of that action, but the objection was overruled, and a verdict was taken for the plaintiffs for the whole amount paid by them to the town of Augusta.
    The defendants’ counsel excepted to these instructions ; and if the Court should be of opinion, that the plaintiffs were not entitled to recover, they were to become nonsuit, otherwise " judgment was to be entered according to the verdict; unless the Court should be of opinion, that the rule of damages was wrong, in which case the verdict was to be altered so as to conform to such opinion.
    Lincoln, for the defendants.
    This action is brought upon the contract contained in the vote of the 28th of November, and not upon the statute relating to paupers. The verdict is wrong, because the paupers never had a settlement in Boylston. By the operation of the laws existing at the time when Boylston was incorporated, without reference to the agreement, the town of Shrewsbury, after the separation of Boylston, was chargeable for the maintenance of Persis Branscomb ; and it was immaterial in what part of the original town she had previously resided. The vote of the 28th of
    
      November does not apportion the poor; it is not mentioned in the act incorporating Boylston, and extrinsic evidence is inadmissible to show that this was the vote to which the legislature intended to refer. But if this is to be considered as the vote mentioned in the act, the sound construction of it is, that Persis, and those deriving a settlement from her, should be chargeable to Shrewsbury ; and the vote was in affirmance of the principles of the law. John Branscomb never had a settlement in Boylston, but his derivative settlement was in Shrewsbury. It was the design of the vote, that the family should be kept together.
    If the paupers had a settlement in Boylston, the plaintiffs ought to have given the defendants notice, as under the general law, of the claim of Augusta, so as to enable them to save expense, either by removing the paupers, or by defending or submitting to the action. This was an implied contract resulting from the express contract. If Boylston had engaged to indemnify Shrewsbury, it should have had the same notice from Shrewsbury that Shrewsbury had from Augusta. Shrews-bury, having given no notice, is, not entitled to recover for costs incurred in defending the action ; in like manner as a surety or indorser cannot recover of the principal, or person previously liable, the costs of a suit against such surety or indorser. Copp v. M'Dugall, 9 Mass. Rep. 1.
    
      Newton and Ward, for the plaintiffs,
    to show that the date misrecited in the act might be rejected as surplusage, the reference being good without it, cited Worthington v. Hylyer, 4 Mass. Rep. 196; Bott v. Burnell, 11 Mass. Rep. 163; and as to the costs, they contended that the agreement was not so much like the case of a surety, as of a covenant to save harmless ; under which even counsel-fees had been recovered. Waldo v. Long, 7 Johns. Rep. 173; Bennet v. Jenkins, 13 Johns. Rep. 50; Sumner v. Williams, 8 Mass. Rep. 162.
   Per Curiam.

A vote was passed by the town of Shrews-bury, in November 1785, containing an agreement, and intended for the foundation of a division of the town. This must be the one referred to in the statute, as no other vote of the kind exists. The reference would have been good without mentioning any date, and the date of the second of January, 1786, may be rejected as surplusage.

The settlement of these paupers must therefore depend upor this vote ; which was passed by all the inhabitants of both towns, they being then one. It appears that there were certain paupers actually chargeable, and it was the intention to divide- them equitably between the two towns. After this is done, the parties look forward, and make an equitable apportionment of those who shall in future become chargeable. They determine, that the towns shall provide respectively for the poor who shall have a settlement in either town respectively. The family of John Branscomb derived their settlement from Persis, who would have been chargeable to Boylston, if there had been no special agreement. We are of opinion, that this agreement related to her and her child Christopher personally, and did not extend to such of her family as should afterwards become poor ; and that the paupers in the present case belong to Boylston.

With respect to damages, it is objected, that Shrewsbury should have given notice of the action brought by Augusta, in order that Boylston might submit or defend, as it should think proper. Such notice was no otherwise necessary than to conclude Boylston by the judgment. Shrewsbury was hound to defend the action, because too great a sum was demanded ; but the omitting to give notice only opened the case to Boylston to deny the settlement of the paupers in Boylston, or to reduce the sum which had been recovered by Augusta. There is no evidence of improper expense by Shrewsbury in defending the suit.

Judgment according to the verdict 
      
       See Hebron v. Marlborough, 3 Conn. R. 209; Westborough v. Franklin, 15 Mass. R. 254; West Boylston v. Boylston, 15 ibid. 261; Norton v. Mansfield, 16 ibid. 48.
     