
    Leavenworth v. Kingsbury.
    In the Court below,
    John Kingsbury, anti the vest of the inhabitants of the town of YVaterbury, Plaintiffs ; William Leavenworth, Defendant.
    
    r-r* JL HIS was an action of assumpsit upon an imimul compu-tassent.
    
    The selectmen of a town are not authorized, by virtue of their office merely, to make a settlement of the claims of the town.
    The defendant pleaded in bar, “ that at and before said “ reckoning was made, he, the defendant, had in his hands “ several papers, to wit, notes, executions, rate-bills, &c. “ which had, before that time, been delivered to him, by the “ select-men, or agents, of said town, fortlie purpose of col- “ lecting and paying over the avails to the state treasurer ; “ and the defendant did, before said reckoning, collect and “ pay over to said treasurer to a large amount ; 'and at “ the time of said reckoning, the defendant had in his hands “ of the aforesaid papers to the amount of the sum said to “ be due in said reckoning. And soon after said reckoning, “ the defendant declined making any further collections on “ said papers, and proposed to the select-men of said town “ to deliver up to them the remainder of said papers, notes, “ executions, &c. on condition, that they would release the “ defendant from said reckoning. And in pursuance of said “ proposition, it was, on or about the 19th of April, 1794, “ accorded and agreed, by and between Street Richards, then “ a select-man of said town; and in behalf of said town, being “ fully authorized by law. and said town, and the defendant, “ that if the defendant would deliver up to the said select- “ man the papers and accounts, that he then held, which re- “ lated to the balances of the state taxes, of which Ira Beebe “ was collector, to the said select-man, the select-man would “ receive them in full satisfaction of the debt and duty con- “ tained in said reckoning. And the defendant says, that he “ did, on or about the said 19th clay of April,-1794, in pnr- “ suance of said accord and agreement, and in fulfilment “ thereof, deliver up to said select-man all the papers and ac- “ counts that related to the balances of state taxes, of which £i Ira Beebe was collector : And the said select-man did then (l receive said papers and accounts as aforesaid, in full satis- “ faction of the debt and duty contained in said reckoning, “ being fully authorized as aforesaid.”
    The plaintiffs traversed this plea ; and thereupon issue was joined.
    On the trial, the defendant, for the purpose ©f shewing the agency and authority of Richards, offered to prove, that he was duly appointed a select-man, and that the other se,-lecl-men authorized him, in behalf of themselves and the town, to settle with the defendant, and to receive the papers and accounts mentioned in the plea. To tiffs evidence the plaintiffs objected as being irrelevant ; and the Court ruled it out. The defendant excepted to this decision ; and a verdict being found against him, filed his bill of exceptions.
    Baldwin, and Smithy (of New-Haven,) for the plaintiffs in error.
    There is no question but that the evidence offered was proper in its nature. It was proper, also, to support the issue. Whether that issue was material, or not, is a distinct consideration* which is not necessary now to go into. One of the facts, which we offered to prove, was, that Street Richards was one of the select-men of Waterbury. This fact was a material part of the issue. We ought then to have been permitted to prove it.
    If the select-men were authorized, by law, to make the adjustment staled in the plea, the rest of the evidence was clearly relevant and admissible.
    
      The act of Richards, one of the select-men, In making this adjustment, was the act of the board. He acted by their direction. In contemplation of law, they did the act. We have specified the mode in which they did it.
    Though no statute has expressly invested select-men with the particular authority for which we contend, it necessarily results from the nature of their office, their general powers, and duties. It is involved in their power “ to take care of and order the prudential affairs of their town.” It may be inferred from oilier particular powers, which, are expressly given. By the statute concerning rates, 
      
       the select-men are authorized to receive back rate-bills from collectors. They must, of course, have power to make a settlement with them. By another statute, 
       the selectmen are invested with the high authority to tax the town, in certain cases, and to grant warrants for collection.
    The power in question must, of necessity, be lodged in the hands of individuals. It would be inconvenient in the extreme, not to say utterly impracticable, for the inhabitants of the town, assembled in, town-meeting, to make bargains, settle accounts, and give discharges. If it be said, that a special agent may be appointed for these, purposes ; we answer, that the powers of towns are derived from statute no less than those ofj^lect-men ; but no statute has expressly authorized towns to appoint such special agents. If implication is resorted to, that is equally, if not more strongly, in favour of the powers of select-men. An accord made with a special agent would be, at least, as questionable, as one made with the select-men.
    
      Smith, (of Woodbury,) and Bronson, for the defendants in error.
    I,, The plea discloses nothing, which could be a defence. The accord, as stated, is defective in itself. Leavenworth 
      had in bis hands several notes, executions, rate-bills, &c. which had been delivered to him by the select-man. These he agreed to give up. What then ? If they were of any value, it was his duty to give them up. But, it does not appear, that they were of any value ; or, that the giving of them up would be of the least benefit to the town, or prejudice to Leavenworth.
    
    Further, it does not appear, that he ever gave up the notes, executions, and rate-bills, which he states, that he had in his hands, and proposed to give up. All that he gave up was, “ the papers and accounts, that related to the balances “of state taxes, of which Ira Beebe was collector.” It is not stated, that in these the town had any interest, or concern.
    This Court will not reverse a judgment of the Superior Court, because they rejected testimony to support an idle and frivolous plea. It cannot be for the furtherance of justice to do so.
    2. If the accord pleaded had been in itself sufficient, the select-men of the town, by virtue of their office merely, were not authorized to make it. The appointment of select-men generally, to take care of the prudential concerns of the town, does not give them unlimited powers. There are several statutes giving them special powers.' This shews, that in the opinion of the legislature, they had not general powers before.
    If select-men have power to give up claims, which the town has against others, they may bind the town to pay money.
    It has frequently been decided, by the , Superior Court, that select-men, as such, have, not power to prosecute or defend suits, to which the town is a party. This can be done only by agenta appointed specially for the purpose.
    
      In the case of Sfiencer v. Overton, the judgment of the County Court was reversed by the Superior Court, becau»^ a letter, containing confessions of the select-men, was admitted in evidence against the town. When the case came here, this Court were unanimously of opinion, that the select-men had no authority to confess away the rights of the town, but reversed the judgment of the Superior Court, on the ground that notice to the select-men was notice to the town, and that the letter was proper to prove such notice, 
    
    S. Granting that the select-men had this power, we contend, that they could not delegate it. It is not stated in the plea, nor was evidence offered to prove, that the accord was made by the select-men of the town, but by Street Richards, one of the select-men. No evidence was offered to shew, that the select-men afterwards assented to it, or in any way-made the acts of Richards their own. The evidence offered was merely to shew, that one of the select-men went and re-settled, or rather, unsettled, what special agents, appointed by the town for that particular purpose, had before settled.
    
      
      
         Stat. 952, edit. 1796. sect. 14.
      
    
    
      
      
         Ib. 376.
      
    
    
      
       Vide vol. 1, p. 183.
    
   By the Court,

unanimously,

The judgment was affirmed.  