Thayer v. Lyman

Aldis, J. The plaintiff sued the principal debtor, and summoned the town of Woodford as trustee upon two town orders. Both had been assigned by the principal debtor. As to the order B. the assignee gave due notice to the selectmen (that is to two of them,) but gave no notice to the town treasurer of the assignment before the service of the trustee process. The plaintiff claims that notice of the assignment must be given to the town treasurer on whom the orde were drawn and by whom they were to be paid, and that notice to the selectmen is not enough. But we think uotiee of the assignment, either to the selectmen or -to the treasurer, is good and sufficient to protect the right of the assignee against the trustee process. Theoretically the treasurer is the officer to pay — practically he does little but protest for non-payment. The selectmen are especially the financial agents of the town. While the debt of the defendant against them was in an account, it was for them to examine and settle it and direct it to be paid. They are bound to keep a record of all orders they draw on the treasury, and lienee have the means of knowing what orders, are given and to [648] whom. The treasurer can not know till the orders' are presented to him. If a trustee process is brought against the town it is to be served on the town clerk. It would be his duty to give notice of it to the selectmen ; and it would be tbeir duty and they would have the means of examining the matter and ascertaining if the town is liable. They have “the general supervision of the concerns of the town,” see. 43, C. S. chap. 15 ; draw orders for the payment of the debts oi the town, sec. 48 and 49; and audit and allow all claims against the towu, sec. 48, and present to the town at their annual meeting a statement of the property, finances and pecuniary situation of the town, sec. 50 ; all duties not committed to any particular officer and required by law, are thrown upon them, sec. 43. If for any reason a town order which has been issued, ought not to he paid to the holder, it is obvious that it would be their duty to inform the treasurer and collector not to pay it, and the discretion to act and decide in the matter is by the necessity of the case confided to them. So too it seems to us that one holding a tow a/order by assignment, if he wished to prevent the town from paying to any body else, should give notice to the selectmen, — within whose authority it would lie to act upon the notice. The right to act and direct as to the payment of the debts of the town, unless otherwise limited or restiained by the town or by law, must rest with them, and does not pass away from them by their giving a town order. But we also think that notice to the treasurer, he being the officer who by law is to pay town orders, would be sufficient. It would be his duty to inform the selectmen of such notice that they might act upon it as they deemed best. We think, therefore, that the judgment as to the order B, by the county court was right, as notice to the selectmen was sufficient. As to order C. Notice to the treasurer was found by the commissioner ; and the evidence of Mr. Park coupled with the fact that the order belonged to Root and that therefore it is probable be would say it was Root’s, and would not say it was his own, [649] justifies the finding of the commissioner. If he was authorized by Root to demand payment, that was sufficient authority to give notice of the transfer of it to Root by Lyman. The judgment of the county court is reversed as to order marked C, and judgment that tbe town of Woodford is not liable as trustee of the principal debtor, and the trustee to recover its-costs.