43 N.H. 451 | N.H. | 1862
Two questions only are raised by the demurrer, (1) that no sufficient demand is alleged, (2) that the action should have been case and not assumpsit. The second ground of demurrer is not tenable. Assumpsit lies on an implied promise to discharge a legal obligation created by statute; 1 Sel. N. P. 73; Rann v. Green, Cowp. 474; and the law implies a promise coextensive with the obligation. It is the general rule, that for money accruing, due under the provisions of a statute, the action of assumpsit may be supported, unless some other remedy is expressly given. Bell v. Burrows, Bull. N. P. 129; Brookline v. Westminster, 4 Vt. 224; Londonderry v. Windham, 2 Vt. 149; Essex v. Milton, 3 Vt. 17; Danville v. Putney, 6 Vt. 512; Pawlet v. Sandgate, 19 Vt. 621; Bath v. Freeport, 5 Mass. 325.
And, although the declaration is evidently defective, yet the demurrer has not assigned the true defect, that no demand was made upon the defendants. The real defect in the declaration is, that it is not alleged that the defendant town had notice of the proceedings by which they are to be made liable. Perhaps this defect might have been remedied by an allegation of a demand, not because the money would not be payable until demanded, but because a demand for the money, in the absence of all other notice, might amount or be equivalent to such notice.
The general rule in regard to notice in special actions of assumpsit is, “that where the matter alleged in the pleading is to be considered as lying more properly in the knowledge of the plaintiff than of the defendant, there the declaration ought to state that the defendant had notice thereof; but where the matter does not lie more properly in the knowledge of the plaintiff than of the defendant, notice need not be averred. 1 Ch. Pl. 328; 1 Sel. N. P. 110; 1 Saund. 62, a, note; Henning’s Case, Cro. Jac. 432. In the latter case, Hennings bought two weights of barley of the plaintiff, and promised to pay for them as much as the plaintiff should receive of any one else, abating only a penny in a bushel. The plaintiff proved
Now let us examine the ease before us. The writ recites that portion of the statute which provides that any insane person committed to the asylum by the judge of probate, &c., shall be supported by the county from which he was committed, and that the money thus paid may be recovered of any county, town, or person, chargeable with his support. Rev. Stat., ch. 9, sec. 15; Comp. Stat. 57 and 58. Section 11 of the same chapter provides “that if any insane person is in such condition as to render it dangerous that he should be at large, the judge of probate, upon petition by any person, and such notice to the selectmen of the town in which such insane person is, or to his guardian or any other person, as the judge may order, which petition may be filed, notice issued and a hearing had in vacation or otherwise, may commit such insane person to the asylum.” Now taking the statute and the declaration together, they fail to show any notice whatever to the defendant. Nor is there any thing that amounts to an averment of notice. They fail to aver or to bring home to the defendant any knowledge of any of the proceedings, or of the fact that Melvin was ever committed to the asylum, or that the county had ever been made liable to pay or had ever paid any thing on his account until suit brought. The complaint to the judge of probate may be made by any one. It would be most likely to be made, in such a case, by some one where the pauper resided. The judge may give notice to the selectmen of the town where the pauper resides, or to any one else he may think proper. But the ease finds that the pauper, in this case, resided in Litchfield, so that if notice was given to the selectmen, this defendant might know nothing of it, and the pauper having been committed by order of the judge of probate, the plaintiff was liable for his support in the first instance to the asylum, and the bills for his support would be made out directly against the county, and the defendant might receive no notice; so that from all that is disclosed in the case, and from all that the statute requires to be done in such a case, the plaintiff would know all about the proceedings, and the defendant might know nothing. "We think the plaintiff, after having stated the proceedings in the probate court, the support of the pauper at the asylum, and the payment of the bills by the county, and the other facts in the case in his declaration,
To support such an allegation in the writ and as tending to prove notice, any notice given by the judge of probate to the defendant of the proceedings before him, or any notice by the authorities of Litchfield, or in the abseuce of these, a demand by the plaintiff after payment, might be competent. But with a proper allegation of notice, no demand need be averred, because the statute does not make the money payable on demand or on request, but in a case like this we think the declaration should aver, and the proof should show notice to the defendant before suit brought. The plaintiff may desire to make this amendment for his own safety, as many of the cases hold that a defect of this kind would be good ground for arresting the judgment. But inasmuch as the declaration is as good as the demurrer, we think the plaintiff should have leave to amend, on motion at the trial term, without costs. •
