#### The City of Boston *versus*The Inhabitants of Westford.

Persons committed to the house of correction under *St.*1787, *c.*54, (for suppressing and punishing rogues, vagabonds, &c.) are there maintained, not as paupers, but as criminals, and previously to the passing of *St.*1826, *c.*142, the keeper of such house, in order to recover of the towns where such persons have their settlements, the expenses incurred for their support, must have pursued the course prescribed by *St.*1802, *e.*22, $ 2.

Assumpsit to recover for expenses incurred in supporting certain persons named in the plaintiffs’ writ, while confined in the house of correction in Boston, pursuant to sentences under *St.*1787, c. 54, for suppressing and punishing rogues, vagabonds, &c.

The parties stated the following facts.

The writ was served on the 29th of July 1828. The persons named in the writ were committed to the house of correction pursuant to sentences by the police court of Boston, and the amount demanded was expended for their support in the house of correction between the 9th of September 1823, and the 15th of July 1825. The persons in question, at the time of their respective commitments, had their lawful settlements in Westford. The overseers of the poor of Boston never gave the overseers of the poor of Westford any notice that such persons were committed to the house of correction, and that the city of Boston would consider the town of West-ford chargeable for their support. The overseers of West-ford, on the 21st of May 1824, received a letter from Ste*18phen Badlam, who described himself as master of the house correction in Boston, giving them notice that Elizabeth Read had been committed to the house of correction under the act “ for suppressing and punishing rogues, vagabonds, common beggars, and other idle, disorderly and lewd persons,” and that her support would be charged to the town of West-ford ; to which letter the overseers of Westford, on the 31st of May 1824, returned to Badlam a written notice denying the liability of Westford to support Elizabeth Read. Badlam, in his capacity of master of the house of correction, was in the practice of sending notice in the manner above described, and in the several cases mentioned in the writ, he sent such notices, through the post office, to the selectmen or overseers of Westford, at the times when the persons named in the writ were respectively committed ; but none of the notices were ever received, except the one respecting Elizabeth Read.

*Jan*20th, *1830 Suffolk*

A nonsuit or default was to be entered, according as the opinion of the Court should be upon the foregoing facts.

*Pickering*(City-Solicitor), for the plaintiffs,

contended that provisions of the pauper laws are not applicable to the present' case, because the design of houses of correction is to detain persons who are criminals or *quasi*criminals, and who are to be kept at work as a punishment and to be required to support themselves ; paupers, on the contrary, are maintained at the public expense, merely ,on account of their inability otherwise to obtain a subsistence. The notice, therefore, required in the case of a pauper, in order to charge the town to which he belongs, is not necessary under the statutes of 1787, c. 54, and 1824, c. 28, upon which this action is brought. The reason of notice, in the case of a pauper, is to enable the town to remove him ; but here that cannot be done, because the offender would be taken away from his punishment. Nor is it essential that this demand should be sued within two years after the cause of action accrued, according to *St.*1793, c. 59, § 9, respecting actions for the support of paupers, but it stands upon the same footing as any private demand, and is subject only to the general statute ot limitations.

*Hoar*and *Jlbbot, contra.*

These individuals, who were *19committed to the house of correction, were criminals, and if so, they, were not to be supported by the town. *St.*1787, c. 54, § 3 ; 1822, c. 82 ; 1823, c. 25 ; 1824, c. 128, §

The *St.*1802, c. 22, § 2, is restrained by *St.*1788, c. 30, § 10 ; and besides, the plaintiffs have not taken the steps required by the statute of 1802.

But if these persons were not criminals, then they were paupers, and notice should have been given as in the case of a pauper, and the suit should have been commenced within two years after the cause of action accrued. *St.*1793, c. 59, §§ 9, 12; 1802, c. 22, § 2; 1821, c. 94, § 3.

Putnam, J.

afterwards drew up the opinion of the Court. The claim of the plaintiffs is for supporting persons committed to the house of correction under the statute of 1787, c. 54, (for suppressing and punishing rogues, vagabonds, common beggars, and other idle, disorderly and lewd persons,) whose lawful settlements were in Westford, and who had no means of supporting themselves.

By *St.*1824, c. 28, § 3, it is provided, “ that the city of Boston shall bear and defray all the expenses of the house of correction in Boston, and shall be entitled to the same remedies to recover the charges of maintaining any person therein, that the masters or overseers of the several houses of correction throughout the commonwealth, or that towns or counties are now entitled to by law.”

We must inquire what remedy they had.

By the 4th section of *St.*1787, c. 54, it is provided, “that if any person, committed as aforesaid, shall be unable to work, or be weak and sick, or the profits of whose work shall not be sufficient for supporting him or her, then to be comfortably provided for by *the master*of the same house, who shall be reimbursed the same by the parent, master, town or the government, who are by law obliged to maintain and support such persons when unable to support themselves, as the case may require.”

By *St.*1802, c. 22, § 2, the expense is to be certified by the Court of Sessions or their committee, and the master of the house of correction “ shall have a right to demand and recover the same of such person [so committed], his parent. *20master or kindred, who may he liable by law to maintain him, or- t^e town wherein he is lawfully settled ; and if such person, parent, master, kindred or town, shall refuse or neglect to pay such sum for the space of fourteen days *after the same shall have been*demanded, *in*writing, of him or them respectively, or of one of the selectmen of the town, the said.keeper shall have and be entitled to an action of the case to recover such sum against the person so committed, or his parent or master, if any he have, liable by law to maintain him, or against the town in which he is legally settled, in case he has not sufficient estate nor kindred who are able and obliged by .law to maintain him, and may declare therein, in a general *indebitatus*assumpsit, and recover judgment for such sum as shall be found due to him, with legal interest from the time the same was demanded, and costs.”

The legislature has provided for the punishment of other criminals than those described in the statute for suppressing and punishing rogues and vagabonds, &c. in the house of correction, by confinement to hard labor, or in the common gaol, in the discretion of the court, acpording to *St.*1818, *c.*123 ; and by the 3d section of that statute the charges are to be reimbursed in the same manner as the expenses of convicts in the state prison ; which, by *St.*1811, *c.*3, § 5, was by a warrant from the governor, with the advice of the council, upon the treasury of the commonwealth. So it continued until *St.*1819, *c.*163, whereby the keeper of the house of correction was to have an order from the court upon the county treasury for the supplies to such convict, and the county treasurer was authorized to charge the same to the commonwealth. But that act refers only to convicts sentenced to solitary imprisonment and confinement to hard labor in the common gaol or house of correction, pursuant to *St.*1818, *c.*123, before cited.

The *St.*1797, *c.*62, § 3, authorizes the commitment of lunatics to the house of correction, “to be kept at his or her own expense, if he or she have estate ; otherwise, at the charge of the person or town upon whom his maintenance was regularly to be charged, if he or she had not been committed.”

*21The legislature has taken up the subject of supporting persons committed as rogues, vagabonds, &c. by *St.*1826, c. 142, which being prospective in its provisions, and having 1 been passed after the cause of action in the present case accrued, cannot affect the decision. It may be convenient, however, in this connexion to state, that by that statute the party so committed, or his kindred, or the town liable by law for his support, are to pay the charges arising in the house of correction, for supporting such rogues, vagabonds, &c. and in default of such, the charges are to be paid partly by the county, and the rest (not exceeding what is allowed for state paupers) by the commonwealth.

The legislature have thus made a distinction as to the remedy for supporting those convicts in the house of correction who are committed under the act for the suppressing- and punishing of rogues, vagabonds, &c., and those convicted of other offences and punished in the house of correction instead of the common gaol; giving, in the former cases, to the keeper or master a remedy against the party himself, or his kindred or the town which should be by law liable to maintain him, and in the latter cases, against the county in the first instance, but ultimately against the State.

The *St.*1822, c. 82, cited by the defendants, prescribes the manner of proceeding upon the accusation of persons for any offences or disorders for which the accused might be liable to be sent to the house of, correction, work-house or house of industry, and gives the accused a right to have the facts settled by a jury. But it does not contain any new provision as to the liability of any person for the support of such convicts. So that the case is to be decided according to the pro visions before cited, in *St.*1802, c. 22.

Before an action can be maintained, it should appear that the claim had been properly ascertained or audited and certified, and then, that it had been demanded in writing at least fourteen days before the suit.

Now it does not appear in the case stated, that any demand was made after the supplies were furnished. If it should be taken for granted that the account was just and reasonable, and chat the persons supported had no estate, yet the town where *22they were settled was not liable to be sued, until after a demand of payment in writing, and a neglect and refusal to pay for the space of fourteen days afterwards.1

It is stated that the practice of the keeper of the house of correction was, to give notice to the towns wherein the convicts were lawfully settled, at the times when they were respectively committed, that the expenses would be charged to them. The notices were prospective, and would not supersede the requisitions of the statute touching the liquidation of the account and the demand of payment in writing, and a neglect or refusal of the defendants to pay in fourteen days before the commencement of the action to recover the same. The notices given at the time of the commitments would be unavailing. The defendants could not proceed to remove the persons. They were not kept and supplied as paupers, in distress and standing in need of immediate relief, but as criminals and convicts, to be punished for their offences.2 The city was bound to furnish them with necessaries while they were so confined, and if it would have the benefit of *St.*1802, c. 22, it should pursue the mode therein pointed out to obtain it.

For the reasons above stated, we are of opinion that the plaintiffs must become nonsuit.3

1

 See *Boston*v. *Weston,*22 Pick. 211; *Robbins*v. *Weston,*20 Pick. 112.

2

 See *Wood*v. *Burlington,*1 Metc. 493.

3

 See Rev. Stat. c. 143, § 16; *Supplement,*1 Metc. 575; *Worcester*t. Aftl *ford,*18 Pick. 381.