Bellinger v. Birge

Merwin, J.,

(dissenting.) The case presented does not, I think, authorize the assumption that any claim was made by defendant that the penalties proved had been paid. There was no plea of payment. The case shows that the new overseer saw the attorney of the parties desiring to have the cases prosecuted, and declined to go on with the prosecution on the ground that he deemed the evidence insufficient. The defendant then proposed to •show that after that the overseer “conferred with counsel about it, and settled and satisfied all the cases, and released everything up to that date,—October 12th.” That was the date of the release offered. There was no suggestion that the penalties were paid. Had such a suggestion been made, very likely the trial would have taken another course. At least, another question would have been presented. So that I think the question for us to determine is:Whether an overseer has any power to release before judgment without payment. The statute (section 22, c. 628 of 1857, as amended by chapter 109 of 1878,) provides that the penalties of the character here sued for “shall be sued, for and recovered by and in the name of the overseers of the poor,—and paid over to the treasury of the county for the support of the poor.” No power to-compromise or compound was given, and none, I think, was intended. Such a power would in many cases destroy the efficiency of the statute. The overseer was not the owner of the cause of action. The trial court simply held' that the paper did not release the cause of action then pending. I think this-ruling was correct.