The opinion of the Court was prepared by
Weston C. J.• The money paid by non-residents, on account of taxes assessed for the highways, is a substitute for labor and materials, to be appropriated to open and repair them. In our judg*278ment, an order drawn by the assessors of a plantation, for money thus paid, in favor of a party, having claims for services performed in relation to the highways, is binding upon the plantation. It makes the money available for the purpose, for which it was paid. In furtherance of this object, the assessors have a right to draw orders, at least to the extent of the fund.
By the stat. of 1821, c. 118, sec. 22, it is provided, that assessors of plantations shall be held to perform all the duties required of the selectmen of towns, relating to highways; and they are invested with the same powers.
It appears, that the non-resident money, which had been paid or liquidated, was equal to the amount drawn in favor of the plaintiffs The assessors, who have the management of the prudentials of the plantation in regard to highways, which are placed under their supervision, as they are under the selectmen of towns, have allowed the claims of the plaintiff. There being an available fund for this purpose, the course pursued had no tendency to impose any additional burthen upon the plantation, unless they bring it upon themselves, by resisting a legal demand, adjusted and allowed by those, whom they have chosen to represent them in such concerns, as fall within their cognizance. There may be sufficient ground therefore, upon which to sustain the action, not legally exceptionable ; but as testimony was received of the advice and opinions of individuals, which was not by law admissible, we sustain the exceptions, set aside the verdict, and grant a new trial.