Rogers v. Town of Shelburne , 42 Vt. 550 ( 1870 )

The opinion of the court was delivered by

Wilson, J.

By the provisions of the statute of 1864, the desertion of the plaintiff’s substitute is not a bar to the action. This question was very fully considered in the case of Bingham v. Springfield, 41 Vt., 32, and the court say in that case that the statute, above referred to, can not be construed as intending to cut off a right of action already perfect when the statute was passed, even if the legislature had power to do so. The case of Hickok v. Shelburne, 41 Vt., 409, is decisive of the other points made in this case. Upon the authority of those cases we think the plaintiff is entitled to recover the $600 and interest.

In view of the circumstances under which the plaintiff received the town order, and the refusal of the treasurer to accept it, the plaintiff should not be required to treat ■ the order as payment of any part of the original claim in the suit. There is no evidence in the case tending to show that the order is negotiable, and we think a recovery in this suit for the whole bounty will be a bar to any action upon the order, and thus protect the defendant town from further liability.

The judgment of the county court is affirmed.