Inhabitants of Kennebunkport v. Smith

The opinion of the Court was drawn up by Whitman C. J. — This is an action of assumpsit under the statute of 1821, c. 122, § 19, which provides that “the inhabitants of any town, within this State, who have incurred expense for the support of any pauper, whether he was legally chargeable to them by means of his settlement or not, may recover the same against such person, his executors and administrators, in an action of assumpsit for money paid, laid out and expended for his use.” By the agreed statement of facts in the case it appears, that the claim of the plaintiffs comes within this legal provision ; but it appears also that the cause of action accrued more than six years before the commencement of the suit; and that it is barred by the statute of limitations, if the provisions of that statute can be extended to a case of this kind. It does not seem to be material to determine whether the statute of limitations of 1821, or of 1841, should be relied upon in the defence. Either, in the literal import of its terms, would seem to embrace this case. The statute of 1821 bars all actions of the case, and an action of assumpsit is an action of the case; and the statute of 1841 bars tc all actions of assumpsit or upon the case, founded upon any contract or liability express or implied.” But it is contended, that although the case may be embraced in the terms of the statutes, yet that it is not within the purview of either of them. And the argument of the counsel for the plaintiffs, upon the point, is ingenious and somewhat plausible, 449 but, on the whole, not entirely satisfactory. The statute authorizing the maintenance of this action is remedial, and not penal: It gives to the inhabitants of towns a right to be reimbursed for an expenditure, incurred by authority of law, against the recipient of the beneiit. It merely creates an implied promise on his or her part to make the reimbursement. Prior to the passage of the statute it'had been held that, at common law, no such action would lie, to recover for supplies furnished to one, who was at the time actually a pauper. Deer Isle v. Baton & wife, .12 Mass. R. 328. This decision, although technically correct, was doubtless supposed, by the legislature, to sanction a principle, which might operate in some cases unreasonably; and therefore provision was made doing away its effect. If the statute, had provided a penalty for a misfeasance, and had ordered that it should be recovered by an action of debt; or had given an action of debt for any cause, not grounded on a lending or contract, the statute of limitations of 1821,, would not have been pleadable 5 for the case would not have been within its terms. Bullard v. Bell, 1 Mason, 289. In determining in any case whether the statute of limitations forms a bar, the forbearance of the creditor' to sue, by reason of the poverty of the person liable, is never to be taken into the account. By the statute, giving a remedy like the one sought in this case, no such provision was in the contemplation of the legislature. If it had been, they would, undoubtedly, so have expressed themselves. On the contrary ¿ the liability created is instantaneous, upon having occasioned the' expenditure; and the limitation must begin to run accordingly. As the statute provides, that the limitation shall extend to all actions of the case, and as this is an action of the case, it would be exercising an undue latitude of construction to determine that it did not come within the purview, of the stature. The plain tiffs therefore must become nonsuit.