Fiske v. Inhabitants of Lincoln , 36 Mass. 473 ( 1838 )

Wilde J.

afterward drew up the opinion of the Court. To entitle the plaintiff to recover, it must appear that he has necessarily incurred expenses, as charged in the writ, for the relief of Jonathan Tower, his ward ; that his ward was poor and stood in need of relief, and that before the expenses were incurred ; and that he gave notice to the overseers, according to the St. 1793, c. 59, § 13. And upon the case stated we are of opinion, that all these requisitions have been complied with by the plaintiff.

The pauper was unable to labor, and he had no property, oi means of support, except his pension, which had been expended for his support previous to the commencement of the charges against the town. The pauper, therefore, stood in need of relief when notice was given, and the objection that the plaintiff was not obliged to receive him, because he was living with another inhabitant of the town, is not, as it appears to us, well founded. If the relation of guardian and ward had not subsisted between the plaintiff and the pauper, this objection might prevail; but the plaintiff, in this relation, not only had the right, but it was his duty, to see that his ward did not suffer, especially as he had provided for him the year before with the approbation of the overseers of the poor, they having promised to indemnify him, or save him harmless, should the small pension prove insufficient for his support.

Then as to the notice and request. This was first made in 1833, and was renewed in November 1834. When the last notice was given the plaintiff had no funds or property of any description belonging to his ward. All his property bad been expended and was only sufficient for his support up to October 6th, 1834. Under the last notice and request the plaintiff is entitled to recover all subsequent expenses ; but without this second notice, we are of opinion the plaintiff would be entitled to recover. The notice in 1833 was equally valid, and the overseers complied with the plaintiff’s request by agreeing to indemnify him, in case the pauper should die within the year. The plaintiff, however, does not rely on the promise of the overseers, and although that was limited to the current year, there was no limitation to the notice and request. If the first notice and request to provide for the pauper was valid, as we think it was, there was no necessity of a renewal.

Judgment for plaintiff.