Platt against Osborn & Hutchins

Platt against Osborn & Hutchins. Statutes giv“fts t0 certain officer<^ . wll° tions brought «fo^o/con’ cernmg any tMn^done by virtue of their offices,” (as in sess. 43, ch. to those of 122, s. 2, relative to school trustees,) apply only to acts of mal-feasance, nonfeasance; as detaining money which they may have officially received. Assumpsit for money had and received. The action was brought to recover back money which had been rightfully received by the defendants, as trustees of a school district in the town of Louisville, in the county of St. Lawrence, under a resolution of the inhabitants of that district, imposing a tax on the plaintiff and others for the intended purpose of building a school house; but which resolution was after-wards rescinded and the purpose of building the school house was utterly abandoned, and no expense was incurred undér the resolution. The suit was brought on- the ground the consideration of the payihent had ■ thereby failed, whereby the money, ex cequo et bono belonged to the plaintiff. Ori trial) at the last circuit in St. Lawrence county, the plaintiff was nonsuited; and now, on affidavits showing the above facts, TV. H. Maynard, for the defendants; moved for double costs. He relied upon the act, (sess. 43, ch. 132, s. 2,) passed 30th March, 1820, giving double costs to- trustees of school districts when they succeed in an action brought against them, for, or concerning any matter or thing done by virtue of their office.. J. Platt, contra. The words of the statute import some act of malfeasance, not merely a nonfeasance. There is á similar statute in England relative to the overseers of the poor, and yet it was holden riot to apply to an action of assumpsit for the non-payment of the price of goods sold to them. (Blanchard v. Bramble, 3 M. & S. 131, 2 Dunl. Pr. 732.) Maynard, in reply. The statute is for or concerning any matter or thing, &c. Here was an act done by the defendants in virtue of their office. The money was received and withheld by them as trustees. In assumpsit against a Sheriff, for money received by him as an officer, I believe the Court have allowed him double costs on a nonsuit or-verdict passing in his favor. [MAJORITY — Curia.] Curia. The case of Blanchard v. Bramble, (3 M. & S. 131,) is in point, arid contairls the true distinction. In construing this and thelike statutes, allowing double cost's, -there is a distinction in reason, as well as authority, between acts of misfeasance, and those merely of nonfeasance. The latter is often a mere omission to fulfil a contract; which does riot' call for the protection of the statute;