#### The Inhabitants of Charlton *versus*David Lathe.

The defendant, having received from the selectmen of a town a sum of money, in order to secure the property of *W. T.*an insane person, who had received relief from the town, promised to account for such sum out of the property, and having by the procurement of the selectmen taken a power of attorney from *W.*T., by the expenditure of the money he secured a deed of land and a promissory note : but a guardian being afterwards appointed to *W. T.s*the defendant, upon a demand made of the deed and note, delivered the same to the guardian, not having received any money thereon. *Held>*that he was not liable to the town for the money advanced.

Assumpsit on the following writing :—“ The town of Chari ton Dr. to David Lathe. 1821, June 9. To cash advanced to secure the property of William Thayer, which I promise to account to the town for, out of said Thayer’s property, 70 dollars. 1821, July 7. Received pay in full for the above account. David Lathe.” The declaration contained a count for money had and received. It was not alleged that any of Thayer’s property had come into the hands of the defendant.

At the trial, before *Parker C.*J., it was proved, that Thayei had wandered from the State of Vermont to Charlton, where he fell into distress and was relieved by the overseers of the poor, he having a settlement in that town. He was supposed to be a person of unsound mind, and was treated as such. It was understood that he had left some property in Vermont, and the selectmen of Charlton, being desirous of indemnifying the town for the expenses incurred in his support, employed the defendant to look up and obtain possession of such property of Thayer as he could find ; and they advanced him 70 dollars, and took from him the writing above mentioned, he having stated that he had paid that sum to clear encumbrances on the property found. The defendant was authorized by a power of attorney from Thayer, procured by the selectmen of Charlton, to receive any property of Thayer in Vermont. *The*property found consisted in part of a tract of land pledged to secure a debt due from Thayer. The defendant paid the debt and received a deed reconveying the land to Thayer. There was also a promissory note due from one Brown, which was delivered up to the defendant by the person with whom it had been deposited

*47*Oct. 3d.*

*Oct.*4th.

After the defendant had obtained possession of the deed and note, one White was appointed guardian of Thayer, and as such he demanded and received the deed and note, the defendant having received no money thereon ; neither did it appear that he had been reimbursed by the guardian his expenses or any money which he had paid to redeem the property.

A nonsuit was directed, with leave for the plaintiff to move to set it aside and have a new trial.

*J. Davis*and Allen, for the plaintiffs.

The defendant acted for Thayer, and not as the agent of the town. *Arfridson*v. Ladd, 12 Mass. R. 173 ; *Stackpole*v. Arnold, 11 Mass. R. 27 ; *Mayhew*v. Prince, ibid. 54. His promise is an absolute undertaking to repay, out of the property of Thayer, the money advanced by the town, and it implies that he had such property in his possession. It was in his power to indemnify both himself and the town, but he voluntarily delivered up the property to the guardian without requiring indemnification.

*J.*Davis, junior, contra,

cited *Dow*v. Prescott, 12 Mass. R. 419, to show that the defendant could not have resisted the claim of the guardian.

*Per Curiam.*

The nonsuit was rightly ordered. The defendant received the money, promising to account. This is not a promise to pay. He undertook to repay the town 70 dollars, only in case that amount was recovered out of Thayer’s property, which he was to look up for the town. The power of attorney was procured by the selectmen themselves. The property was secured, and if the defendant could have retained it against Thayer, he should have repaid the town. But a guardian was appointed, undoubtedly at the instigation of the town, and the defendant was obliged to deliver the property to him ; for if he had defended under the power of attorney, it would probably have been shown to be void. If the town are not deprived of their right to remuneration from Thayer by any unreasonable expenditures by the defendant, the defendant ought not to be charged.1

*Motion to take off the nonsuit overruled.*

1

 If one has agreed to pay money, when he shall have received certain funds, he is liable in damages for non-payment, although the particular *48funds have not come to his hands, if the failure to receive the funds arose from his own fault. *Blight*v. *Ashley,*1 Peters’s C. C. R. 25,