It is admitted, in this case, that Samuel Eaton was legally committed to the jail in Norridgewock in the county of Somerset, on an execution against him and in favor of the defendant, Joseph Perry. The committal was on 26th Dec., 1865, and the debtor refusing to pay his board, to make the statement that he was unable to pay it, to support himself or to furnish security for his support, the jailer immediately notified the overseers of the poor of Norridgewock and claimed of them pay for said Eaton’s board. The town of Norridgewock seasonably gave the plaintiff town, in which Eaton had his settlement, due notice of these facts.
The town of Norridgewock paid the jailer for the board of Eaton until April, 1866, when he was discharged. They then brought their action and recovered judgment against the plaintiffs for the amount by them paid. Norridgewock v. Solon, 49 Maine, 385.
The plaintiffs, having paid the amount recovered against them, bring this action against the defendant for the amount so paid, under the provisions of R. S., 1857, c. 24, § 26, by which " the town where he (the debtor committed) has his settlement is liable to pay the expenses incurred, not so paid by him : and the town incurring them may recover the same of the creditor, at whose suit he was committed, at the rate fixed by law for his support.”
It is manifest that the jailor could not have maintained an action under R. S-, 1857, c. 113, § 51, because the debtor did not make "a written complaint, by him signed and sworn to, stating that he is unable to support himself in jail, and has not sufficient property to furnish security for his support,” &c.
It is objected that the plaintiffs cannot recover because Eaton was not a pauper. But he was in jail, deprived of his liberty, and without apparent means. It was a matter of discretion, with the overseers of the town of Norridgewock, whether or not they should set him " to work so far as necessary for his support.” He was actually destitute and in *496distress, and, in such case, it was the duty of the overseers of the poor, in the town in which he was so found, to relieve him, and, relieving him, they are entitled to recover for the amount furnished, against the town in which the person thus committed has his legal settlement. Norridgewock v. Solon, 49 Maine, 385.
Assumpsit is the proper form of action in pauper cases. It lies on an implied promise to discharge a legal obligation created by statute. Bath v. Freeport, 5 Mass., 327. So, assumpsit upon an implied promise will lie by a creditor to recover of his debtor the amount he has paid the jailer for his board while imprisoned on the creditor’s execution. Plummer v. Sherman, 29 Maine, 555; Spring v. Davis, 36 Maine, 399.
By the writ, as originally drawn, "the person and case can be rightly understood.” R. S., 1857, c. 82, § 10. Courts are liberal in the allowance of amendments for the furtherance of justice. The amendments proposed-were allowed by the Court. Their allowance or disallowance was a matter of discretion. Judgment for the plaintiff.
Cutting, Walton, Barrows and Tapley, JJ., concurred.