Darling v. Simpson

After a continuance, the Opinion of the Court was drawn Up by Weston C. J. From the case as presented, we are to understand, that the fish committee, for the town of Sullivan, incurred expense, in causing to be kept open a sufficient sluice way for the passage of fish, with which the defendants were liable to be charged, in an action of assumpsit, to be brought by the committee. After money had been expended by their joint order and procurement, it would be inequitable to permit one of them, by a separate adjustment, to deprive his colleague of all remedy, for what he has a right to claim. Uniting in the authority to perform the duty, and make the expenditure, that authority may be taken to be a continuing one, until the business is consummated. The statute gives the action to the committee, so that there can be no such severance of the claim, as will sustain the action of one alone, or of [177] less than a majority. No injustice is done to the defendants, who were allowed what they hare already paid. And the member of the committee, who attempts to defeat the action, is fully indemnified from all liability, arising from the use of his name. On the other hand, to sustain his motion for a nonsuit, would occasion a failure of justice, to the prejudice of his colleague, without any benefit to himself. It having been made to appear, that the committee were sworn, that ground of exception, according to the agreement of the parties, has been removed. Exceptions overruled.