Boyle's Lunacy

Opinion by Smith, J.,

By the Act of June 13, 1836, P. L. 589, a person charged with any crime or misdemeanor, and acquitted on the ground of insanity, was to be “ kept in strict custody, in such place, and in such manner, as to the court shall seem fit, at the expense of the county in which the trial was had ; ” and the place to which he ivas chargeable, under the poor laws, was, “ after notice of his detention as aforesaid,” made “ liable for all costs and expenses as aforesaid.”

The Act of April 14, 1845, P. L. 440, establishing a state *4 hospital for the insane, directed the committal thereto of any person charged with an offense punishable by imprisonment or death and found insane, “ in the manner now provided by law.” It made the county of his residence primarily liable for the expense; but directed the court to certify to the trustees his place of settlement, after due notice to the poor authorities of the district, and thereupon such district was made chargeable.

The Revised Code of Criminal Procedure of March 31,1860, sections 66 to 70, re-enacted the provisions of the act of 1836.

The Act of May 14, 1874, P. L. 160, authorized the commitment to a hospital for the insane of “ any person who may have committed any criminal act, and is dangerous to the community,” and is found insane in the manner provided by law, “ and in all cases mentioned in the 66th, 67th and 68lh sections” of the act of 1860. It further provided that all expenses should be paid by the county commissioners, and that “ the said commissioners shall have remedy over against the poor district liable under existing laws, or against the estate and effects of every such prisoner, for the reimbursement of .the said expenses to the said county.”

In June, 1891, John Boyle, indicted for murder in the oyer and terminer of Luzerne county, was acquitted on the ground of insanity, and committed to the state hospital for the insane at Danville, at the expense of the county. His place of settlement was not certified by the court, but, as admitted in the present proceeding, was the céntral poor district of Luzerne county. In August, 1901, the county having paid for the maintenance of the lunatic, began this proceeding for reimbursement by the poor district of his settlement.

Meantime the act of June 25, 1895, provided “that where any person is or shall be committed to the care and custody of any hospital for the insane by any court or judge in any county, in pursuance of the laws of this commonwealth, the county from which said person has been sent or committed to said hospital shall be liable to said hospital for his or her maintenance therein, and the expenses connected therewith, Provided, That such county shall, in all cases, have full recourse to recover all expenses incurred in behalf' of said person so committed, from the parties or persons or poor district properly chargeable therewith under the laws of this commonwealth.”

*5 This makes no change in the provisions respecting insane criminals; it merely fixes the primary liability of the county, with the right of recourse to the persons or poor district chargeable with the maintenance of the lunatic, in all cases of commitment by a court or judge.

In Com. v. Burton, 16 Pa. Superior Ct. 218 , upon a review of the statutory provisions on the subject by our Brother Beaver, this court held that the county might elect to proceed, for reimbursement, against the district of the lunatic’s settlement, or the persons chargeable with his support. It may also, under the act of 1874, look to “the estate and effects” of the lunatic. On the question of liability, the case in hand is not distinguishable, in any material aspect, from Com. v. Burton. Any question that might have arisen from the plaintiff’s delay, growing out of a contest respecting the lunatic’s settlement, is eliminated by the agreement of counsel, on the hearing below, that “at the time of his commitment his place of legal settlement was in the central poor district of Luzerne county.” This district, therefore, is not prejudiced by the loss, through delay, of evidence by which a settlement elsewhere might have been shown. Whether defense may be made on the ground that recourse to the means of indemnity lias been lost, through delay, by reason of the dissipation of the lunatic’s estate, or the insolvency, death or removal of persons chargeable with his support, need not here be determined, since no such defense is presented or suggested.

The claim is contested, in the main, on the ground that no demand was made on the defendant district before the proceeding was commenced; and the first specification is that the court erred in refusing to find, as matter of fact, that no demand was made, or notice given of the intention of the county to claim reimbursement for the moneys expended, during a period of ten years, until after the commencement of the proceeding. There is, however, no provision of law requiring findings of fact by the judge in proceedings under the poor laws, except on an appeal from an order of removal, when either party may “ except to any decision of the court upon any point of evidence.” The complaint on this point, indeed, overlooks the circumstance that the opinion of the court below sets forth the facts agreed on by the counsel, one of which is *6 “that no demand was made or notice given to the central poor district of the claim for reimbursement now made by Luzerne county.” But, as already said, we do not regard the claim as barred by laches, except so far as it may be affected by the statute of limitations.

There is, however, one aspect of the failure to make a demand before bringing suit, that should be noticed. A municipality, or quasi municipality, such as a county or other subdivision, is not bound to seek its creditors for the purpose of making payment, but they must seek the authorities charged with the duty of paying, and present their claims : and this is especially the case when the proper mode of making payment is by an order drawn on the treasurer: Luzerne County v. Day, 23 Pa. 141 ; East Union Twp. v. Ryan, 86 Pa. 459; Friend v. Pittsburgh, 131 Pa. 305 . In such case, therefore, an action without a previous demand is prematurely brought, since there has been no default in payment. A defense based on such failure, however, is in the nature of a dilatory plea, in suspension only and not in bar of the action. As such it should be presented at the outset. Hence, in accordance with the established rules of pleading, when the matters of defense are set out at large in an answer, and the issue is formed on petition and answer, the absence of a demand should be averred in the answer. In the present case, the answer contains specific denials of the matters alleged in the petition, but no averment that demand has not been made. This point first appears in the facts agreed on by counsel, more than two months after the answer was filed, but with no direct intimation as to its bearing on the case. The defendant could have waived a demand, and defended on the merits, and, under the pleadings, must be regarded as having done this.

Judgment affirmed.