
    Emerson Geer & another vs. George Chapel & Trustees.
    A county cannot be held as trustee in foreign attachment of a juror whose fees have no< been allowed by the court.
    Trustee process. The inhabitants of this county, being summoned as trustees, disclosed in their answer that the defendant served as a juror at October term 1857 of the court of common pleas for this county for thirty eight days, and was allowed for his travel and attendance $82.24 by an order of the court passed at the expiration of that term, and a week after the service of this process.
    
      N L. Johnson, for the plaintiffs.
    A county is liable to be summoned as trustee. Rev. Sts. c. 14, § 5 ; c. 109, § 6. Whidden v. Drake, 5 N. H. 13. The county is absolutely liable to the juror for his fees at the expiration of each day’s attendance. St. 1855, c. 120. Whitney v. Munroe, 19 Maine, 42. Hooper v. Hills, 9 Pick. 435. Frothingham v. Haley, 3 Mass. 70. Wood v. Partridge, 11 Mass. 492. Clark v. Brown, 14 Mass. 271. Thorndike v. De Wolf, 6 Pick. 121.
    
      G. J. Tucker, for the trustees,
    cited Fellows v. Duncan, 13 Met. 332; Maine Fire & Marine Ins. Co. v. Weeks, 7 Mass. 438; 
      Mayhew v. Scott, 10 Pick. 54; Chealy v. Brewer, 7 Mass. 259 ; Rev. Sts. c. 109, § 30.
   Metcalf, J.

It is not necessary now to express an opinion whether a county can, in any case, be held as trustee of jurors whose fees have been allowed by the court and ordered to be paid from the county treasury. But until such allowance and order have been made, we think it clear that a county cannot be so held. Rev. Sts. c. 109, § 30. In Fellows v. Duncan, 13 Met. 332, where an order of the city council of Lowell was passed, that a certain sum be paid to D. for land taken for a street, but for the payment of which sum no order had been drawn on the city treasurer, it was decided that the city could not be held as trustee of D.; there being no debt due to him, for which he could maintain an action of debt against the city. The decision in that case is decisive of this.

Trustees discharged.  