Pease v. Inhabitants of Cornish , 19 Me. 191 ( 1841 )

The opinion of the Court was delivered by

Shefley J.

An order drawn by the selecimen upon the treasurer of a town must be presented for payment. Varner v. Nobleborough, 2 Greenl, 121. The person making such presentment should have it with him, that it may upon payment be delivered up or cancelled. But it is not necessary, when payment is declined, that it should be produced and exhibited. The treasurer states, that a list headed, “ list of surplus orders due on said Feb. 1, 1839,” containing names and sums was presented to him and payment demanded by the plaintiff, holding in his hand a bundle of papers and declaring them to be his orders ; and that he told him, that he had no funds. On that list is found the name of Jonathan Sweat, which is the name of the person in whose favor the order was drawn. This is equivalent to a request to have $ 16,32, due on an order drawn in favor of Jonathan Sweat, paid; and that was a sufficient description, when payment was declined without desiring a more exact one.

It is said, that the order was drawn on a particular fund, which has never been received into the treasury. The language in the last clause of the order, “ it being for his proportional part of the surplus revenue fund,” designates the purpose for which it was drawn ; not the fund out of which it was to be paid. The treasurer is not instructed to pay it out of the surplus revenue fund. Nor can the objections, that there was a mutual mistake, and a want of consideration, prevail. The town had by its authorized agent received its share of the surplus revenue from the State, and had voted to distribute it as the act of the legislature permitted. Sweat became thus entitled to his share; and if the money was not then in the treasury, the town might, as was decided in Davis v. Bath 17 Maine R. 141, cause funds to be placed in the treasury for the purpose of payment.

Exceptions overruled.