Stimpson v. Inhabitants of Malden , 109 Mass. 313 ( 1872 )

Chapman, C. J.

By the finding of the judge, it appears that there was due to Wilkinson from the defendants, for services for three months ending February 1, 1870, the sum of $50; that this claim was assigned to the plaintiff, and the assignment was recorded, and notice thereof given to the defendants ; and that a bill was made out by the plaintiff and presented to the proper officers of the town, who duly approved the same. The certificate of approval by the engineers bears date January 27, and that of the selectmen February 8. This approval authorized the finding that the defendants were liable to the plaintiff to pay him in their usual way by an order drawn by the town clerk upon the treasurer. The assent of the clerk or of the treasurer was not necessary in order to complete the contract of the town with the plaintiff. They were not the officers intrusted with the making of contracts to pay, but their business was to make payments. The clerk drew an order on the treasurer, and, when the plaintiff called upon him, should have delivered the order to him. When he informed the plaintiff that he had delivered the order to Cromack, to whom it had been paid, the plaintiff was under no necessity to make a demand for it which would have been fruitless, but was entitled to his action forthwith.

The payment to Cromack was unauthorized; for although the writ of Rhoades against Wilkinson was dated January 26, yet it was made returnable before a justice of the peace on February 9, a period of less than thirty days from its date. The service therefore was insufficient to give the magistrate jurisdiction of the defendants. Gen. Sts. c. 123, § 22. It was open to the plaintiff to take advantage of this defect. Downs v. Fuller, 2 Met. 135. Leonard v. Bryant, 11 Met. 370.

Exceptions overruled.