#### William Wade, Administrator, *versus*The Inhabitants of Salem.

The master of a house of correction, under the statutes of 1802, c. 22, § 2, and Í826| c. 142, after his accounts have been allowed and certified by the Court of Sessions, may maintain an action of *assumpsit*for the compensation allowed by such court, for keeping, supporting, and employing any person duly committed to the house, against the town in which such person is legally settled, if he has no estate, and no kindred liable by law to support him.

The neglect of the Court of Sessions to establish rules to govern the persons committed, to provide materials for their employment, and to keep accounts thereof, as required by *St.*1802, *c.*22, is no defence to such an action by the master of a house of correction against a town.

Where the accounts of the master of a house of correction had been allowed by tie Court of Sessions, and one of the towns charged in them appeared by counsel and contested their allowance, the only notice to the town of the claim having been given at the court; it was *held,*in an action by the master against the town, to re* cover the compensation allowed by the Court of Sessions, that the want of notice to the town afforded no defence to the action ; but that the record of the Court of Sessions was not conclusive as to the liability of the town, which could make in the action any defence to which it might be legally entitled.

This action was brought to recover the expense of keeping, supporting and employing several paupers, inhabitants of Salem, in the house of correction at Ipswich, by the plaintiff’s intestate. The case was submitted to the Court on the following statement of facts agreed by the parties.

The plaintiff’s intestate was master of the house of correction at Ipswich. The Court of Sessions, at a special session held on the second Tuesday of July, 1827, allowed and certified that the several sums, to recover which this action is brought, were due to the plaintiff’s intestate for his care, trouble and expense of keeping, supporting and employing the several persons named in the record of that court, committed to the house of correction according to law. These persons were paupers who had their legal settlement in Salem, and had not sufficient estate, nor kindred able and obliged by law to maintain them. The defendants were present by their counsel before the Court of Sessions, and objected to the allowance of the accounts. The first notice which the defendants had of the charges was given at the court. No rules for the government of the house of correction, nor materials for the employ *339ment of persons imprisoned in it, have ever been provided by the Court of Sessions, neither have there been any overseers of the house appointed by that court, nor any accounts kept by the court or the master of the house, of the earnings of the prisoners. An information against the county for not providing a house of correction, was filed by the Attorney General at the November term, 1826, of the Supreme Court in this county ; and the Court of Sessions has since erected a house of correction ; but all the charges in the plaintiff’s bill accrued before its erection, and a part of the same before March 10, 1827. The town of Salem has never before been called on to pay the expense of keeping any one in the house of correction.

*Nov. 7th.*

The defendants were to be defaulted, or the plaintiff to become nonsuit, according to the opinion of the Court.

*B.*Merrill, for the plaintiff.

The statute of 1787, c. 54, provides for having a house of correction in every county, and the 4th section makes the town liable to pay for the' support of its inhabitants who are confined in the house, if their labor will not support them. The statute of 1802, *c.*22, § 2, provides that when any sum shall be due to the keeper of a house of correction, for supporting and employing any person duly committed, and the same shall be allowed and certified by the Court of Sessions, or their committee, “ he shall have a right to demand and recover the same of such person, his parent, master, or kindred, who may be liable by law to maintain him, or of the town wherein he is lawfully settled.” This section gives an action of *assumpsit*to recover such sum. The statute of 1826, c. 142, passed March 10, 1827, gives the keeper a like compensation for the care and support of any person committed, to be determined by the Court of Sessions, “ to be paid out of his or her own estate, if any there be, and if not, then out of the estate of his or her kindred who would be liable by law to support such person if a pauper, and if there be no such kindred, then such compensation to be paid by the town or city where such person shall have a legal settlement.” All the facts necessary to support the keeper’s action under the statutes, are admitted in this case. Whether the house of correction was *340such as it ought to be, is immaterial. The court who have jurisdiction have decided in favor of the plaintiff’s claim, and their record is conclusive in this action. *Smith*v. *Rice,*11 Mass. *R. 512.*The town of Salem appeared before tne Court of Sessions, and if it was dissatisfied, should have brought a *certiorari.*If the house of correction was not suitable, it was not the keeper’s fault. The information and erecting a new house have nothing to do with the case.

*Saltonstall*and Waters, for the defendants.

The proceedings of the Court of Sessions were not conclusive on these defendants. The statute does not intend that they shall be, since it gives an action of assumpsit, to which a defence may be made, instead of a warrant of distress. And in the present case the order of the court must be ineffectual, for want of notice to the defendants. Further, the house in this case did not conform to the provisions of the statutes. There were no rules; and no materials furnished by the Court of Sessions ; there were no overseers ; and no accounts were kept. This not being a house of correction, the defendants are not liable. They cited *St.*1787, *c.*54, § 4 ; *St.*1784, *c.*42; Col. Law. of 1646, Anc. Charters &c. 178 ; *Prov. St.*1699, ibid. 334 ; *Taunton*v. Westport, 12 Mass. R-355 ; *Commonwealth*v. *Hampden, 2*Pick. 414 ; *St.*1793, c. 59 ; *Washburn*v. Belknap, 3 Connect. R. 502.

The opinion of the Court was afterward drawn up by

Parker C. J.

We do not think that the right of the master of the house of correction to recover the expenses of supporting such persons as shall be thereto committed, can depend upon the strict execution of the laws in other respects by those officers upon whom the duty of enforcing them is enjoined. The persons for whose support this action is brought are agreed to be paupers, whose legal settlement was in the town of Salem ; so that by the terms of *St.*1826, c. J42,1 that town is liable to the keeper for the amount of the expenses allowed by the Court of Sessions.

But it is objected, that the Court of Sessions had neglected its duty, as prescribed by *St.*1802, c. 22,2 in regard to fur*341nishing materials for labor, establishing rules and regulations for the employment and government of persons sent to the home of correction, and in other respects, and that for this cause the plaintiff is not entitled to recover The expenses having accrued for the support of persons chargeable as paupers to Salem, they having been sent there by competent authority, and the keeper being obliged to receive them, we think his right to compensation is not to be affected by the neglect of the Court of Sessions. The case comes clearly within *St.*1826, *c.*142, so far as it relates to expenses accrued after the passing of that statute, and as to antecedent expenses, the statute of 1802, c. 22, establishes the same right. The towns by whose authority paupers were sent to the house of correction,, should have taken legal measures to cause the Court of Sessions to perform their duty ; the master of the house had not the authority or power to do this.

But it is objected, that the town had no notice of the proceedings of the Court of Sessions in settling the account of the master, and therefore they ought not to be bound by their order. No notice is specifically required by the statute, but the Court of Sessions are to settle the accounts, upon due inquiries into the circumstances of each case. In order to make their order conclusive, they should have given notice to the inhabitants of Salem, or their authorized agents. Without such notice the account which they have allowed is open to examination, and the jury may determine upon the amount due, or the liability of the town charged, if the settlement of the persons on whose account the expenses arose shall be contested, but the omission to give notice does not defeat the right of action. Instead therefore of a default, the parties may go to trial, if they see fit; otherwise the defendants ought to be defaulted, and judgment will be rendered for the amount allowed.

1

 See Revised Stat. c. 143, § 15,16.

2

 See Revised Stat. *c.*143, $ 14.