— The legal capacity of the plaintiffs to maintain the action is controverted. By the statute of 1824, ch. 254, sec. 2, the selectmen, town clerk, and treasurer, for the time being, of every town in the State, where other trustees for the same purpose had not been previously appointed, are made tras*384tees of the ministerial and school funds in such towns forever. It does not appear, nor is it suggested, that other trustees had ever been appointed in the town of Dutton. It is a trust confided, and a duty imposed, by law upon certain officers of each town respectively. They became trustees, by the acceptance of the offices. They are inseperably connected. No individual can accept the one, and decline the other. There is evidence in the case, not objected to, that they had acted as a corporation. Their existence as such is declared by a public law, of which we are bound to take judicial notice.
But by pleading the general issue, the defendant has by our law, waived that objection, and admitted the legal existence and competency of the' plaintiffs. The law is otherwise understood in New York; as appears by the cases cited for the defendant. In the Proprietors of Monumoi beach v. Rogers, 1 Mass. 159, and in the Proprietors of the Kennebec Purchase v. Call. 1 Mass. 483, it was holden that the existence of the plaintiffs as a corporation, could be questioned only by a plea in abatement. And in the First Parish in Sutton v. Cole, 3 Pick. 232, the same rule of law is recognised as a settled principle ; and that, by pleading the general issue, the defendant thereby admits the capacity of the plaintiffs in the character, under which they have assumed to act. And such we understand to be the law and practice of this state.
The note declared on, was given to the treasurer of Dutton, one of the trustees, and as the plaintiffs were the party in interest, it is insisted that the promise expressed therein enures to them, and authorizes an action in their name. And cases, tending to support this position, have been cited. As, however, we sustain the action upon another ground, it is unnecessary to give an opinion upon this point.
If the note given to the treasurer of Dutton, if negotiable, would have been payment of the plaintiffs’ debt, which might be questionable, unless it enured to théir use, not being negotiable, it was no payment. By the common law, a simple contract debt was not discharged by any other promise. The law of Massachusetts, and of some other States, holding the same doctrine, is peculiar, in regarding a. negotiable note as payment of a prior *385debt. It is founded upon its negotiable character, and does not apply to other instruments. It is true, the treasurer of Dutton gave a receipt in full for the stumpage due to the plaintiffs. But if it was competent for him alone to discharge their debt, it is testimony open to explanation ; and must be understood to operate effectively only upon payment of the note.
If the note was no payment, the plaintiffs had a claim for stumpage upon the defendant, and upon his associate, Elisha Gibbs. For this they have sued the defendant alone. If he would have availed himself of the nonjoinder of Gibbs, he should have pleaded in abatement. Not having done so, this objection cannot be taken under the general issue. The case of Robinson v. Robinson, 1 Fairf. 240, is directly in point.
With regard to the statute of limitations, relied upon in the brief statement, it appears that both Gibbs and the defendant acknowledged the existence of the debt, within six years before the commencement of the action.
The exceptions are sustained, the nonsuit set aside, and a new trial granted.