#### The Inhabitants of Seekonk *versus*The Inhabitants of Attleborough.

The actual removal of a pauper by the town in which he has a settlement, within thirty days after legal notice of relief being furnished him by another town, is a condition precedent which must be strictly performed in order to exempt the former town (under *St»*1821, *c,*94, [Revised Stat. *c.*46, § 15,]) from a greatei expense than one dollar per week ; so that where such town having within the tiiirty days prepared to remove the pauper, but finding him too ill to be removed with safety, provided for his further relief and support by a contract with an individual, it was held that the other town was nevertheless entitled to recover the whole amount of its expenses reasonably incurred on account of the pauper.

Assumpsit for the board and nursing of William Hor, a pauper, from October 2, 1826, to November 20, of the same *161year, at the rate of five dollars a week, and the expenses of die attending physician. Plea, *non assumpsit*as to all of the demand, except six dollars and fifty cents, and a tender of that sum.

At the trial, before *Morton*J., it was admitted, that the pauper’s settlement was in Attleborough. He was taken ill at Seekonk, September 11th, 1826. Notice was given to the overseers of Attleborough October 2d. Within thirty days after the receipt of this notice, they gave notice to the overseers of Seekonk, that they admitted the pauper’s settlement to be in Attleborough, and they went to his residence for the purpose of removing him, and with suitable means to effect his removal; but in the opinion of his attending physician, and others who saw him, he could not be removed with safety. As soon as he could be removed with safety, but not within thirty days from the receipt of the notice, the overseers of Attleborough did remove him.

The defendants contended, that inasmuch as they had done all in their power to remove the pauper within thirty days, and had actually removed him as soon as it could be done with safety, they had brought themselves within *St.*1821, *c.*94, § 3, which enacts that a town in which a pauper has a settlement, shall not be subjected to a greater expense than at the rate of one dollar per week, for supplies furnished to the pauper by another town, “ *provided*it shall cause such pauper to be removed within thirty days from the time of receiving legal notice, that such support has been furnished.” But this objection to the plaintiffs’ recovery was overruled.

The defendants then offered evidence to prove, that at the time when they attempted to remove the pauper, they made a contract with the person who had before boarded and nursed him, and also with the physician who had attended him, to continue to do the same at a certain price, at the expense of Attleborough. The plaintiffs contended that this, if true, did not bring the case within the statute. But as there was con tradictory evidence on this point, the judge overruled the objection and submitted the question to the jury ; who found that such contracts were made by the defendants, and that they ten*162dered an amount sufficient to cover the support of the pauper at one dollar a week up to the time of the contracts.

*Oct.*23d.

*Oct. 25th.*

The plaintiffs moved for a new trial.

*W. Baylies*and *Hunt,*for the plaintiffs,

cited *Ware*v. *Wilbraham,*4 Pick. 45; *Cutter*v. *Powell,*6 T. R. 320.

*A. Cushman,*for the defendants.

The *Court*said that by the general law, the plaintiffs were entitled to recover for their reasonable expenses, and to take the case out of this rule the defendants must show that they have performed the condition contained in the statute of 1821. [Revised Stat. c. 46, § 15.] It does not follow that the plaintiffs are to be deprived of their legal rights because the defendants have done all in their power to comply with the condition.

*Mew trial granted.*