Inhabitants of Newcastle v. Bellard

Mellen C. J.

The provision in the 26th sec. of the statute ©f 1821, ch. 59, is “ that the treasurer of this State, treasurers “ of counties, towns, parishes and other corporations for the time il being, may commence and prosecute in their own names any “■ suit or suits at law upon any bonds, notes or other securities which have been or may be given to them or their predecessors u in said capacity.” The defendant relies on this section as abar to the present action. The objection may receive two answers. 1. This action is not brought on any such bond, note or other security; — it is an action for monies had and received. The case does not fall within the language of the provision, 2. But if it did, the objection could not be sustained. The provision only empowers and authorizes such treasurers to sue in their own names; it does not require that they should be plaintiffs, and of course, the principle of the common law remains as before, by which a promise made to an agent or servant, may be declared on as made to the principal. With respect to the other ground of defence, we are very clear that must fail also; for two reasons. 1. It is not competent for the defendant in this action between the town and himself, to offset any demand on account which he has against Nichols the treasurer in his private capacity, any more than against any other person. 2. If he had such right, it could not have been allowed in the present instance, as no account was legally filed in offset. The defendant, even without this, has had the benefit of all demands which he had against Nichols as treasurer-, or, in other words, against the town; — and the verdict has been returned against him for no more than the balance due to the town, or to the treasurer in his capacity, according to the defendant’s own confession. There can be no possible reason for sustaining the motion for a new trial.

Judgment according to verdict.