
    Anson Mayhew versus James Scott and Trustee.
    One summoned on a trustee process disclosed, that overseers of the poor having put up to auction a female pauper, to be bid off to the person who would maintain her a year for the least sum, she was bid off by the respondent, who was to receive a dollar a week for her support; that her father being unwilling to have her removed from the defendant’s house, where she resided, and the defendant being willing to maintain her during the year at a dollar a week, the respondent con- . sented that she should be so supported, one of the overseers agreeing thereto ; that she was supported by the defendant accordingly ; that at the end of the year the defendant, accompanied by a creditor to whom he owed $ 52, called upon the respondent, and informed him that the money for the support of the pauper must pass through his hands, and it was then agreed that the respondent should get an order on tile town treasury from the overseers, in his own favor, and deliver it to the creditor ; that the respondent obtained such an order, and was forthwith summoned in this suit. It was held, that the town, and not the respondent, was liable to the respondent for the support of the pauper, and that therefore, independently of the order, the defendant was not chargeable as trustee of the defendant; and that the • possession of the order did not make him chargeable, it being but a chose in action.
    From the answers of Rice, the supposed trustee, it appeared that the overseers of the poor of Charlemont had put up to auction a pauper, who was an insane female residing with Scott, to be bid off by. the person who would undertake to support her, during one year, for the least sum. She was bid off by Rice, who was to be paid for her support at the rate of one dollar a week. Rice afterwards met Scott and one of the overseers, and it was mentioned by one of them, that the father of the pauper was unwilling to have her removed to a new place, and that Scott was willing to maintain her during the year for the same compensation which was to be paid to Rice. Rice consented that Scott should continue to maintain the pauper, the overseer agreeing thereto ; and she was accordingly so supported by Scott. At the expiration of the year, Scott, accompanied by one Drury, called upon Rice, saying that he had applied to one of the overseers for payment, and that he was told that the money must pass through Rice’s hands ; and it was then agreed between all of them, that Rice should get an order on the town treasury from the overseers for $ 52, drawn in his own favor, and leave it at one of the shops in Charlemont for Drury, to whom that sum was due from Scott. Rice accordingly obtained the order, and was immediately summoned in this suit.
    
      
      Sept. 30th.
    
    Wells, for the plaintiff.
    Rice must be adjudged trustee. Scott had a right of action against him for supporting the pauper. Even if Rice’s liability to Scott was doubtful before, it was fixed by his receiving the town order from the overseers, as the order discharged the original contract of the town. Varner v. Nobleborough, 2 Greenl. 121 ; Maneely v. M' Gee, 6 Mass. R. 143 ; Johnson v. Johnson, 11 Mass. R. 359 ; Thacher v. Dinsmore, 5 Mass. R. 299. The agreement with Drury doe's not amount to an assignment of the debt to him ; it was rather an accord. If Drury had brought an action against Scott, this agreement could not have been pleaded in bar. Chitty on Contr. 286 ; Cuxon v. Chadley, 3 Barn, and Cressw. 591 ; 1 Comyn on Contr. 28 ; Crow v. Rogers, 1 Str. 592 ; Bourne v. Mason, 1 Ventr. 6.
    
      Grennell, contrà,
    
    said that the contract of Rice with the town was not completed. The bidding off of the pauper was an incipient proceeding, for the purpose of fixing the sum to be given him for her board, if the overseers should choose to let her go into his hands. The debt therefore was not due from Rice to Scott, but from the town to Scott. And if it was due from Rice, it was assigned to Drury. Curtis v. Norris, 8 Pick. 280.
    The possession of the town order will not render Rice a trustee, as it is merely a chose in action..
   Wilde J.

afterward drew up the opinion of the Court. As no express contract was made between the principal and the trustee, the question is, whether the latter can be charged on the ground of an implied promise.

In order to charge a party on an implied assumpsit for services performed, it must be shown that they were performed for the benefit or at the request of the party to be charged. From the facts disclosed, no such benefit or request appears ; on the contrary, the supposed trustee released to the principal the expected, benefit he might have derived from his contract with the town, and this was done for the accommodation of the principal and at his request. This arrangement was made with the approbation of one of the overseers of the poor, acquiesced in by the others, and not objected to by the town. The town was bound to pay for the support of the pauper according to its contract with the trustee. Whether an action would lie against the town in the name of the principal, is a question which it is needless to discuss ; for it would clearly lie in the name of the trustee for the benefit of the principal. There was an equitable assignment of the contract with the town, and it is manifest the parties so understood it. But if the agreement did not amount to an assignment, still the trustee was liable to no action. He merely relinquished his right in the contract. He received no consideration for the relinquishment, made no stipulation that the contract should be fulfilled by the town, and there was no fraud or misrepresentation. When applied to for payment, he did all that was required of him in law or equity by procuring an order on the town treasury. This order he received as the agent of the principal, to deliver over to Drury, and he was bound to deliver it according to his promise. But if he was not so bound, it is quite clear, according to all the decisions on this point, that as holder of a chose in action, he could not be charged as trustee.

Trustee discharged.  