The statute of 1837, c. 244, on which this action is founded, provides “ that whenever any person coming from abroad, or residing in any town in this state, shall be infected with the plague, small pox, or other sickness dangerous to the public health, the board of health of such town shall make effectual provision, in the manner which they shall judge best for the safety of the inhabitants, by removing such sick or infected person to a separate house, or otherwise, and by providing nurses, and other assistance and necessaries, which shall all be at the charge of the person himself, if able; otherwise, at the charge of the town to which he belongs.” As no provision is made, in this statute, for notice to the town to which the infected person belongs, in order to render such town liable to an action to recover the expenses incurred by furnishing him with assistance and necessaries, the first" question in this case is, whether the law required any notice to be given by the plaintiffs to the defendants, before the commencement of the action. On this point we have no doubt. In the action of assumpsit, it is a settled general rule, (as expressed in some of the books,) that when a matter is secret to the plaintiff, and such whereof the defendant cannot take notice without being informed by the plaintiff, or lies more properly in the knowledge of the plaintiff than of the defendant, whether it be a condition precedent, on which the performance of the defendant’s promise is altogether to depend, or it be only to regulate the extent to which it is to be performed, the plaintiff must cause such notice to be given to the defendant, before he can bring an action against him for not performing his promise. The case at bar clearly falls within this old and just rule ; and therefore we have only to decide whether the plaintiffs, before commencing their action, gave to the defendants such notice as the law requires.
It has been argued for the defendants, that they were entitled to a notice to their overseers of the poor, from the *60overseers of the poor of Springfield, according to the provision of the Rev. Sts. c. 46, relating to paupers generally. But the legislature have not so directed, nor does the reason of the case so require. The care of a pauper, in ordinary cases, is given, by Rev. Sts. c. 46, to the overseers of the poor of the town where he falls into distress; and they are manifestly the proper persons to give notice to the overseers of the poor of the town where he has his settlement, who are, as manifestly, the proper persons to receive and attend to the notice. One purpose of such notice is to enable the town, which is liable for such pauper’s support, to remove him to that town and support him there. But in the case at bar, the care of the infected person was given, by St. 1837, c. 244, to the board of health. The overseers of the poor had, by law, nothing to do with him or for him; and in the absence of any statute provision, we see no reason why they, rather than any other town officers, should have given notice to the defendants, nor why the notice should have been given to the overseers of the poor of the town of Worcester, who could not have removed such person and supported him in that town.
The remaining question is, whether the notice, which the defendants received, was sufficient to charge them. When no specific form of notice is prescribed by law, reasonable notice is all that is necessary. In the present case, the notice was in due season, and was full and clear in its terms. It was given by the selectmen of Springfield to the selectmen of Worcester. This, in the opinion of the court, was a reasonable notice. Selectmen have the general oversight of all town affairs which are not specially confided to other town officers. They supervise the disbursement of the town’s money, and are, generally, the organs of communication between one town and another, and between towns and individuals. We know of no more proper mode of giving notice, which the plaintiffs could have adopted. It seems to us to be all that was required by law or by comity.
The plaintiffs .are therefore entitled to judgment on the *61verdict, unless they are defeated by matter- arising since the trial, and not appearing on the judge’s report.
By St. 1848, c. 119, which has been cited by the defendants’ counsel, and of which we are bound to take notice, so much of St. 1837, c. 244, as relates to the small pox, was repealed, without any saving clause to prevent the repeal from operating on this action. This repealing act was passed on the 18th of April, 1848, before this cause was tried, and the repeal took effect on the 18th of May following, which was, as appears by the clerk’s docket, ten days after the verdict was returned. It is thereupon insisted, that if the other objections to the plaintiffs’ recovery are overruled, yet no .judgment can be rendered on the verdict; because the action can be maintained only on the statute of 1837, under which no further proceedings can be had.
The general rule, as to the effect of the repeal of a statute, on unfinished proceedings under it, when no saving clause is inserted in the repealing act, is admitted by the counsel for the plaintiffs; but he denies that the terms of 1848, c. 119, are such as to affect this action, and also denies the power of the legislature to defeat the plaintiffs’ recovery, by any terms of repeal which they might be pleased to use. These questions have been well argued ; but we have not found it necessary to decide them. For by Si. 1842, c. 89, § 2, “ whenever any motion for a new trial shall be overruled, the court.shall render judgment as of the term when the verdict was rendered, whenever it shall be necessary or expedient so to do, in order to secure the rights of the prevailing party, or prevent any loss by reason of the death of either party, or otherwise.” We do not understand the words, “motion for a new trial,” to be here used in their technical sense. Such a construction would defeat the intention of the legislature, in half the cases for which they evidently meant to provide. We therefore construe the words, according to the spirit and purview of the statute, so that it may effect its manifest design, by enabling the court to enter judgment nunc pro tunc, *62whenever a case is continued, on motion of a dissatisfied party, for the purpose of his obtaining some new disposition thereof, which shall relieve him from a verdict.
But if the statute of 1842 were not applicable to the present case, we are of opinion that the common law authorizes us to enter judgment as of the term when the verdict was rendered. When an action, which would fail by the death of either party before judgment, is continued for argument or advisement, whether there has been a verdict, demurrer, or agreed statement of facts, and one of the parties afterwards dies, it is the common course of the court, in order to prevent injustice, to enter judgment as of a former term. Bingham on Judgments, 95, 96; Key v. Goodwin, 1 Moore & Scott, 620 ; Ryghtmyre v. Durham, 12 Wend. 245; Perry v. Wilson, 7 Mass. 395. And the death of a party is not the only cause for such an entry of judgment. In Mara v. Quin, 6 T. R. 1, it was held, that a plaintiff who had sued out a scire facias against an executor, on a judgment that was entered in 1793, might amend the judgment, by entering it as of a term in 1791, and might also amend his scire facias conformably, for the purpose of reaching the assets of the testator, which the executor might otherwise retain in his hands; unless the executor could show that some injustice would thereby be done. “ The forms of the court,” said lord Kenyon, “ are always best used when they are made subservient to the justice of the case.” See also Gregory v. Haughton, 1 Dev. 442.
Judgment is to be entered as of the last day of May term, 1848, which was the tenth day of that month.