44 Vt. 450 | Vt. | 1872
The opinion of the court was delivered by
The orator asks that the order for $500, given by Jeremiah McDonald and John W. McDonald, as selectmen of the orator, and dated May 25, 1861, may be ordered to be surrendered and cancelled, as having been obtained and given through the fraud of Property McDonald, and of his father and brother, the selectmen who signed the order. The order was given in settlement of a- suit then pending against the town in favor of Property McDonald, to recover- for injuries alleged to have been received by him through the insufficiency of a highway, which it was the duty of the town to maintain and keep in repair. We have had no difficulty in finding, from the evidence, that the order was obtained and given in fraud of the rights of the orator; and .that in giving the order, Jgrqmiah McPonald and John W.
The order is negotiable in the broadest sense, being payable to bearer, and is drawn upon the treasurer of the town, and regular upon its face. Although it is overdue, the orator would be embarrassed if it should be negotiated. The orator is a corporation, and can act only through its officers, and can have remedy against such officers only for malfeasance or misfeasance in the discharge of their duties. If the treasurer of the town — this court having dismissed the bill for want of jurisdiction, and without finding that the order was tainted with fraud — should assume to pay the order, the order, in a suit against the treasurer, would be burthened, not only with proving the order fraudulent, but also with showing that the treasurer acted corruptly in paying the same.
We think the circumstances bring the case within the rule as laid down by Chancellor Kent. If the evidence left the fact of fraud in doubt, the case might merit a different consideration. The pro forma decree dismissing the bill is reversed, and the case is remanded to the court of chancery, with a mandate to enter a decree for the orator, ordering the order of May 25,1861, for $500, surrendered and cancelled. This order will not affect the suit at law, so far as it is based upon the other order. From the consideration that the suit at law for the alleged injury upon the highway was discontinued by the giving of the order for $500, we