Drake v. Inhabitants of Stoughton

60 Mass. 393, 6 Allen 393

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1850
• Status: Published

Opinion

Dewey, J.

This case is closely connected with the preceding (Cushing v. Stoughton); the claim of the plaintiff arising from services performed by him, in relation to the proposed distribution of the surplus revenue deposited with the town of Stoughton.

The plaintiff’s claim embraces two classes of services. The first and principal charges are for the services of the plaintiff in making demands upon the trustees holding that fund, to deliver over the same to the plaintiff and others, claiming to be 'egally constituted receivers, and authorized to distribute the same among the inhabitants, agreeably to certain votes of the town passed on the 22d of March, 1847, and other charges for services in aid of this object. The purpose for which these services were rendered was an illegal one, and had been so declared by this court in the case of Simmons v. Hanover, 23 Pick. 188. The plaintiff was one of the inhabitants of Stoughton, and was cooperating with the majority, in the design of withdrawing those funds from the trustees, for the illegal purpose of a distribution thereof, though under color of a loan, to the inhabitants of Stoughton. Such is the character of these services, as rendered by the plaintiff, that no action will lie therefor against the town, upon either an express or an implied assumpsit. All charges for services of this nature should have been rejected.

In relation to the other class of claims, to wit, for attending court to defend the town of Stoughton in the suit in equity, it being in the ordinary course of the administration of town affairs, to appoint agents to defend suits against the town, we think the plaintiff may be entitled to recover for his services, in defending the suit against the town, but strictly limited to that object.

Exceptions sustained in part and new trial ordered.