70 Me. 262 | Me. | 1879
Whether the restrictive word “as” in the body of the note declared on makes it, so far as its form is concerned, the note of the town and not the individual note of the treasurer, we need not now inquire ; for if we adopt that as the true construction, the plaintiff cannot recover under the special count on the note, for the fatal reason that no officer of the town has the authority to issue a note in behalf of the town without*the express permission of the town in its corporate capacity ; and the report fails to show any such action by the town. This is too well settled to require the citation of authorities.
Neither can towns borrow money and issue notes of a commercial character for the execution of their ordinary business, unless expressly or impliedly authorized by the statute. Towns are creatures of the statute and find their duties and powers there specified. The general financial officers of towns frequently draw orders upon the treasurers for the payment of some legitimate indebtedness of the town, but such instruments are mere vouchers for the treasurer’s disbursements. And though frequently made negotiable in form and therefore have the quality of negotiability so far as to authorize the holder other than the payee to bring his action in his own name if occasion requires, still they are in nowise ¡commercial paper free from equitable defenses, in the hands of bona fide indorsees. Willey v. Greenbush, 30 Maine, 452. Sturtevant v. Libbey, 46 Maine, 457. Emery v. Mariaville, 56 Maine, 315. Bessey v. Unity, 65 Maine, 342. Any view counter to this in Chamberlain v. Guilford, 47 Maine, 135, is not sound. The “mischievous and alarming consequences” that towns may borrow money and issue therefor notes invested with the character of commercial paper are thoroughly exposed by Judge Dillon in an elaborate opinion recently announced in Gause v. Clarksville, in the U. S. Court for the E. Dist. of
Nor need we consider the question whether a town may not be held upon the ground that it received the money and in fact appropriated it to and expended it for its legitimate expenses, as it seems to have been held in Gauge v. Clarksville, supra and eases there cited, and in 1 Dillon Mun. Corp. §§ 384,750 and notes, and the cases cited by .the plaintiff. For the facts reported utterly fail to satisfy us that the money received by Brown from the plaintiff ever went for the benefit of the town; but from the testimony of Brown himself we feel confident that it went in part to make up what he calls the $12,000 “mystery,” but which the statute denominates “embezzlement.” He testifies that he frequently “borrowed money when I had it in the treasury” apparently unconscious of or indifferent to the fact that such a borrowing is styled and punishable as “larceny” by the statute. R. S. c. 120, § 7.
Taking all the testimony together with his we think it “points the probability” that the town never had a dollar of the plaintiffs money. And if we should décide otherwise, our only reason would be that which is sometimes assigned as the ground of some verdicts, to wit — the plaintiff is a woman and the defendant a town.
Neither does the testimony prove ratification. Dickinson v. Conway, 12 Allen, 487.
Judgment for the defendants.
