Fellows v. Duncan

Shaw, C. J.

The court are of opinion that the city of Lowell are not liable upon their answer as trustees. The city council had adopted a resolution, laying out a public way, and embracing, among other things, a resolution that a certain sum should be awarded and paid to Duncan for land taken. But no order had been delivered to the treasurer to pay the money. It was not a debt due, on which an action of debt would lie against the city. Something further remained to be done. Should the party, to whom damages are awarded, be required to apply for a mandamus, or other process, requiring the proper officers of the city to draw an order or take any other step for the payment of his damages, it would be open for them to show that the money was not due to Duncan, but to other parties. This is the more important, since they say, in their answer, that they have now discovered that the whole of the money is not payable to Duncan. But the ground of discharge is, that at the time of the service of the writ there was no debt due from the city to Duncan, the principal defendant.

Trustees discharged.