Nathaniel Watson versus The Inhabitants of Cambridge, 18 Pick. 470

Shaw C. J. delivered the opinion of the Court. These • • infants were persons casually placed under the care of the jailer and master of the house of correction, as necessarily accompanying their mothers, when committed ; but they were not themselves committed for any crime or offence, or by order of law. They were, therefore, not within the provision of any of the statutes making the support of convicts, and persons confined on criminal prosecutions, a charge upon the Commonwealth.

St. 1794, c. 48, § 1. [Revised Stat. c. 143, § 15, 16,] But they were persons, found in the town of Cambridge, standing in immediate need of relief, of which, in each case, the town had notice, and they were bound to furnish such relief. St. 1793, c. 59, § 9, 13. The plaintiff was an inhabitant of Cambridge, not liable for the support of these paupers, so situated that it was proper that he should relieve them, and, therefore, after notice, by force of the statute the town became liable to pay him. St. 1793, c. 59, § 13 ; Cargill v. Wiscasset, 2 Mass. R. 547; Sayward v. Alfred, 5 Mass. R. 244.

On notice to the overseers of the town where the pauper happens to be, or is thus found, they must judge whether they will pay the keeper of the house of correction, or provide foi the support of the child themselves, in some other place ; and in either case they will have their remedy for reimbursement, either on the town of the child’s settlement, if there be any within the State, otherwise upon the Commonwealth.

If indeed the infant is of such tender years, that it would be obviously unfit and improper to remove it from the mother, the same rule would apply, as in case of a pauper too ill to be removed, or where from any cause a removal would endanger life or health. Such a case would obviously be an exception to the right of overseers to remove, and would oblige the town to afford relief at the place where it is required.

But in the present case, the defendant town, not admitting their liability, refused to assume the support of these children, in any form, and, therefore, by the general law became liable to the plaintiff, who furnished it, after notice. The law, in this respect, is not changed by the Revised Statutes. Whatever was done for the mothers, though the allowance was greater than would have been made if they had not had nursing children, must still be considered as done for the-relief of the mothers, and as such chargeable to the Commonwealth, in the same manner as the general support of the mother.

Defendants defaulted.