#### The Inhabitants of Southbridge versus The Inhabitants of Charlton.

Where a new town was created of parts of several towns, and it was provided that the new town should support all such persons as before had been, then were, or thereafter might be, inhabitants of those parts of the former towns then incorporated into such new town, and were or might become chargeable, and who had not a settlement elsewhere, — it was holden that the new town was not chargeable with the support of paupers who, at the time of the incorporation, were supported by one of the old towns upon the territory forming part of the new town, but whose settlement was derived from owning and occupying real estate in another part of the old town.

Towns furnishing supplies to paupers belonging to other towns may generally recover what they have *bond fide*paid; but if the charges are extravagant or exorbitant, they are bound to attempt to remove the paupers, or to give notice of the expense to the town eventually chargeable.

Assumpsit for the supplies furnished to two paupers, one named *Jonathan Weld,*about sixty years of age, the other a boy, seven or eight years old, named *Edwin Clemence.*

At the trial, which was had upon the general issue, before the *Chief Justice,*at the last April term in this county, the following facts were agreed by the parties, *viz.:*The settlement of *Jonathan Weld*was derivative from his father, who acquired his settlement by owning and occupying real estate in that part of the territory, originally *Charlton,*which still remains a part of that town. The settlement of *Edwin Clemence*was derivative from his grandfather, *Jonathan Clemence,*who acquired his settlement by owning and occupying real estate in. like manner. And it was further agreed that, at the time of passing the act incorporating the town of *South-bridge, viz.,*February 15, 1816, the said *Jonathan Weld*and *Edwin Clemence*were paupers, and supported, by the town of *Charlton,*within the limits of that part of said town which is now a part of *Southbridge;*and that, at that time, there were no other persons chargeable to the town of *Charlton*residing within the territory incorporated as *Southbridge.*

*230(By the act incorporating *Southbridge,*(1) it was provided “ that the inhabitants of the said town of *Southbridge*shall support and maintain all such persons as heretofore * have been, now are, or hereafter may be, inhabitants of those parts of *Sturbridge, Charlton,*and *Dudley,*hereby incorporated, and are or may become chargeable according to the laws of this commonwealth, and who have not obtained a settlement elsewhere therein.”)

The principal question reserved for the consideration of the Court was, whether, by the said act, the said paupers acquired a settlement in *Southbridge;*and if they did, the verdict, which was for the plaintiffs, was to be set aside, and the plaintiffs were to become nonsuit.

The verdict was taken by consent, except as to the amount of the damages. It was contended that the plaintiffs ought to recover the sum proved to have been paid by them for the support of the paupers. The damages found by the verdict are considerably less than the sum proved to have been paid to one *Jonathan Clemence,*an inhabitant of *Southbridge,*on a contract made by the overseers with the said *Jonathan ;*which contract, there was evidence tending to prove, was fairly made ; it having been made known at a meeting of the selectmen that the poor would be disposed of, but no other notice thereof was given by the overseers. But there was evidence tending to show that the sum paid by the town was considerably beyond what is usually paid for the support of paupers, and above what had been paid by the same town, to the same person, for the support of the same paupers in preceding years and the year succeeding ; and there was evidence, on the other side, tending to account for this excess, by showing that a certain manufacturing establishment, in which these paupers had been employed, had ceased to employ them.

The *Chief Justice*instructed the jury that towns furnishing supplies are not entitled to recover all they may have paid, if the charges should appear unreasonable ; that if the sum was more than common, but still not extravagant or exorbitant, if it appeared that the supplying town had acted fairly and economically, as far as in their power, they ought to recover what they have paid ; but that if * they contracted to pay an exorbitant sum, although they could not procure a better contract, before they could be entitled to recover a sum so paid they ought to show that they had attempted to remove the pauper to the place of his settlement, or that they had given notice, to the overseers of such *231town, of the expense to which they were subject. Under this charge, the jury returned their verdict for a less sum than the plaintiffs had paid.

If, in the opinion of the whole Court, the plaintiffs could maintain their action, and the above direction was wrong with respect to the damages, the verdict was to be altered, so as to increase the damages proved by the evidence in the case to have been paid, with interest on the excess to the date of the writ, and interest on the whole to the time of rendering judgment.

*Lincoln,*for the defendants,

argued that, by the general law, if there had been no special provision in the act of incorporation, these paupers, having their residence at the time in that part of *Charlton*which became *Southbridge,*would have had their settlement in, and been chargeable to, the new town. It is of no importance, in the decision of this question, how the paupers became resident in that particular part of *Charlton,*provided there was no fraudulent intention. Indeed, the legislature must have had these very individuals in contemplation when making the provision. The case finds that there were no others so situated.

As to the damages, common justice requires that towns should be limited, in these cases, to what is a reasonable charge. It should be at their peril if they go beyond. Here was a want of publicity of the intention of the overseers of *Southbridge*to place these paupers at board. It was mentioned only in the selectmen’s room, whereas fairness required that public notice should be given, which would have induced some rivalship in the offers. At any rate, if the plaintiffs have a right to any thing, the verdict has given them as much as, upon proper principles, they are entitled to receive.

* *Newton,*for the plaintiffs.

These paupers were not *inhabitants*of Southbridge, within the meaning of that term, as used in the constitution and laws of the commonwealth. They had not their home in that part of *Charlton;*they did not go thither voluntarily. (2) If the defendants are right in their con struction of the provision of the act, it would have been easy for the Jbree towns of which *Southbridge*was constituted, by placing all their paupers on that part of their respective territories which was (o go to make up the new town, to saddle the whole of them upon *Southbridge.*

With respect to the damages, it was the business of the defendants to inquire into the expenses accruing. If they conceived them unreasonable, they had the means of preventing the inconvenience by removing the paupers or furnishing the supplies themselves. The *232town supplying cannot, in every case, remove a pauper to the place of his settlement. He may have a tenement, from which it would be unlawful to separate him.

The cause stood continued for advisement; and, at the following term, the opinion of the Court was pronounced by

(1)

3) *Stat.*1815, c. 116, § 4.

(2)

13 *Mass. Rep.*460, *East Sudbury*vs. *Waltham.*

Parker, C. J.

The paupers, having had their legal settlement in the town of *Charlton,*must retain it, unless, by virtue of the act incorporating *Southbridge,*they gained a settlement within that town.

We think it very clear that the act of incorporation did not affect their settlement. They were then paupers: not having removed within the limits of the newly incorporated town by iheir own volition, but having been placed there, by the overseers of *Charlton,*for the convenience of that town, their municipal relation remained unaffected by the removal; nor were they inhabitants of that part of *Charlton*which became *Southbridge,*within the meaning of the fourth section of the act of incorporation.

The manifest intention of the legislature, in making the provision contained in that section, was to make *Southbridge** chargeable with the support of all such persons as should be or become poor, and who would be considered inhabitants, provided the several territories erected into the town of *Southbridge*had been, before the passing of the act, a separate and distinct town ; leaving the other towns, out of which *South-bridge*was created, to provide for the poor who were inhabitants within their respective limits in the same manner as they would have been held by law had not the new town been incorporated. The paupers would have gained no habitancy by being placed at board by the overseers of another town; but the very act of placing them there, at the expense of the town which sent them, would continue their relation to the place of their former residence.

The Court are also of opinion that the instructions given to the jury, on the subject of damages, were right. There can be no doubt that a [own which has supported paupers properly chargeable to another town ought to be fully indemnified for all the expense properly incurred. But cases may arise which would impose upon the advancing town the duty of diminishing the expense, or of giving an opportunity to the town eventually liable to save expense, by removing the paupers, or otherwise providing for their'support.

In this case the towns were adjacent, and, without doubt, daily intercourse was kept up between the inhabitants. If the paupers could not be supported, but for an extravagant sum, within the town primarily liable, the overseers should inform the neighboring town of the expense, or should remove the paupers, if that can be conveniently done. Notice, however, would be sufficient to render the *233town to which the paupers belonged liable for all expenses *bond fide*incurred. But without such notice, where it can be conveniently given, as in the case before us, we think, if an exorbitant sum is paid for the support of paupers, although not *mala fide,*it cannot be recovered, (a)

*Judgment according to the verdict.*

(a)

*Middleborough*vs. Clark, *2 Pick.*28. — *Walpole*vs. Hopkinton, 4 *Pick,*357.