Weymouth v. Inhabitants of Gorham

22 Me. 385 | Me. | 1843

The opinion of the Court was afterwards drawn up by

Tenney J.

— The cause of this action arose in virtue of c. Ill, § 12, of the statutes of 1821, but the proceedings in the prosecution of the suit must conform to the provisions of the Revised Statutes, c. 178, <§> 21. The plaintiff can recover only by showing a strict compliance with the statutes applicable to the case, unless there has been a waiver by the defendants of some of their rights.

The town of Gorham is called upon to answer to the plaintiff, “ master of the House of Correction situate in Portland.” It is contended that the action should have been in the name of the master as such, and that not being the case, the non-suit was properly ordered therefor. The plaintiff’s claim accrues by virtue of his office; and proof of his being the master is indispensable in support of the action therefor. But the indebtedness of the town for the board and clothing of Lombard, who had his legal settlement therein, is to the plaintiff for his own private benefit, and not in trust, for any other. If he had ceased to be the master he could as well sustain the action as he can while he continues in the office; the right of action in such an event would not vest in his successor. He is called the master of the house of correction in the writ, and proof was introduced, that he was such by due appointment, while Lombard was under his charge. This objection fails.

It is insisted, that an action brought apon the doings of the County Commissioners in allowing the plaintiff’s account, is the only one which can be sustained. The Revised Statutes provide that the suit may be prosecuted at law as upon an implied promise. In the statute of 1821, it is provided, that whenever there shall be due to any keeper of the bouse of correction, for the care, trouble and expense of keeping, supporting and employing any person committed by virtue of that act, any sum or sums of money, and the same shall have been allowed and certified by the Court, he shall have a right to demand and recover the same of the town wherein he is lawfully settled; and if the town shall refuse or neglect to pay such sum for the space of fourteen days after the same shall have been demanded in writing, the keeper shall be entitled to an action, and may 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 allowance by the County Commissioners and a demand are necessary steps to be taken, and conditions to be fulfilled before an action can be commenced ; but the allowance by the commissioners is by no means in the nature of a judgment; and by the Revised Statutes is not even presumptive proof, unless notice was given to the town previous to the allowance. In all cases, the whole matter is subject to revision in the trial of the .action. The expenses incurred and services rendered are the cause and basis of the action.

There is nothing in the case, which shows that there were any earnings by Lombard, when he was in the plaintiff’s charge, and the objection, that no account thereof was kept, is not well founded.

Again it is contended that the plaintiff made no such demand as the statute requires. The demand was certainly very informal, and perhaps of itself was insufficient. But the overseers of the poor of the town of Gorham, treated the plaintiff’s letter as a legal demand, and returned an answer thereto, stating that they had received the bill, and refused payment, on the ground that nothing was due, Lombard having labored, and no account having been rendered for the value of his labor by the plaintiff. The case of York v. Penobscot, 2 Greenl. 1, is in point to show that the objection, which might otherwise have been taken, was waived.

But the objection much relied upon is, that the suit was not seasonably commenced. The statute under which the cause of action arose was repealed by the general repealing act, but by the same act, <§> 2, there is saved, “ also to all persons, all rights of action in virtue of any act repealed as aforesaid, and all actions and causes of action, which shall have accrued in virtue of or founded on any of said repealed acts, in the same manner, as if said acts had not been repealed.” To the cause of action in this case, the repeal of the statute of 1821 has no application. But as the proceedings in the prosecution of the suit are to conform to the Revised Statutes, if they have limited the time within which the action can be commenced to two years from the allowance by the County Commissioners, even if it deprives the party of the remedy, we cannot disregard such limitation. But by the 21st section of chap. 178 of the Revised Statutes, it is for the liability incurred by the preceding section, that the action must be commenced within two years from the time of such allowance. For the liability under the old statute, which for this purpose is unrepealed, there is no other limitation, than that contained in the general statute of limitations.

There are other objections, which are matters in defence rather than such as go against the maintenance of the action upon the plaintiff’s proof, which it is unnecessary to consider.

Nonsuit taken off, and the action to stand for trial.