Opinion
Decided March, 1879.
The liability of a town treasurer, and his sureties on his official bond, for a sum of money in his hands due the town, is not discharged by his own note for that sum, accepted by his official successor as cash in full payment and discharge of the debt with the assent of a selectman.
DEBT, by a town, against sureties on the official bond of Cogswell, formerly town treasurer. Facts found by a referee. Cogswell's account having been examined by him, and his successor, Barnes, there was found due the town a balance, for which Cogswell gave Barnes his note, which Barnes accepted as cash in full payment and discharge of the debt. This was done in the presence of a selectman of the town.
Fowler, for the plaintiff.
Albin Streeter, for the defendants.
The treasurer, Barnes, was authorized to receive the money due the town, but not to compel the town to accept himself as debtor, in place of his predecessor, without receiving the money. If the selectman who was present assented to the act of Barnes, his assent was unauthorized. Horn v. Whittier, 6 N.H. 88, 94. The town has not ratified the settlement, and is not estopped to deny the authority of Barnes and the selectman.
Judgment for the plaintiff.
FOSTER, J., did not sit: the others concurred.