Opinion
Fall Sessions, 1843.
CERTIORARI to Justice Welch.
Record. C. Lofland, use of D. Lofland vs. B. Watson, treasurer of the ditch co., c. Action of debt on an order drawn by Job Sharp, one of the managers of said ditch, on the said B. Watson, treasurer.
The order was as follows: —
Mr. Benaiah Watson, treasurer of a ditch leading from the lands of David C. Pennewill into Russel's mill-pond, pay to Cornelius Lofland, one dollar and twenty-five cents, for two days' work on said ditch, at 62 1/2 per day, for the use of Sarah Hevaloe, widow of Jesse Hevaloe.
$1 25. (Signed) JOB SHARP, Manager. Aug. 12, 1842.
I transfer the within order to D. Lofland.
(Signed) CORNELIUS LOFLAND.
The parties appeared on the day of trial; "defendant disputed the demand, and plead the order not accepted and no money belonging to said ditch in his hands." Judgment for plaintiff.
Exceptions: — 1st. That the cause of action was not within the magistrate's jurisdiction. 2d. That the plaintiff had no cause of action. 3d. That the defendant was not liable to a suit on the order before acceptance. 4th. That he was not liable without proof of funds in hands as treasurer.
The Court. — By the 8th section of the general ditch law (9 vol. 468,) the managers of any ditch company are authorized to make the ditches, and employ the laborers; and all payments are to be made by orders drawn by the managers on the treasurer. The treasurer is required by section 9, to give bond and security conditioned for the faithful performance of his trust and duty, and the payment of any money in his hands as treasurer, over to his successor, at the expiration of his office.
The liability to laborers for their wages is therefore on the part of the managers, and not on the part of the treasurer, at least before the acceptance of orders, which must be drawn by both managers, or the treasurer is not bound to accept or pay them. If he refuse to accept orders properly drawn on him by the managers, the treasurer is liable to them on his bond; but he is not liable to the holders of such orders, between whom and him there is no privity, and no obligation or promise express or implied, to pay the wages. If the orders be not accepted, they should be returned to the managers, who would be responsible on their contract with the laborers for the amount of wages. If accepted, the treasurer would be liable on his acceptance.
Judgment reversed.Cullen, for reversal.
Houston, for affirmance.