Adams v. Mack

| Superior Court of New Hampshire | Sep 15, 1826

Richardson, C. J.

As duplicity is assigned as a cause of demurrer, to.the first plea, we shall consider that objection, before we proceed to examine the matter of the pleas. If the plaintiff had complained of the taking only, and had‘alleged no conversion of the horse, it might have deserved* consideration, whether a plea alleging a taking for several taxes, must not have been considered as double. But that is not this case. Here the plaintiff alleges a conversion of the property, and the defendants must justify not only the taking, but the sale of the horse, and the detention of money enough, from the proceeds of the sale, to pay the whole sum^ they had directed the collector to levy, j. he had levied the whole sum. It was therefore necessary, that the defendants should shew, that they had authority to assess the whole sum upon the plaintiff. 2 Mod. 177, Harding vs. Ferne.—6 D. & E. 137, Moore vs. Beamont—15 Mass. Rep 144, Libbey vs. Burnham.—1 Burrows 320.—1 Chitty's Pl 512.—3 N. H. Rep. 17, Brackett vs. Whinden.—13 Mass. Rep. 283.

We are therefore of opinion, that this objection must be overruled.

But it is contended, that it does not appear, by the pleadings in this case, that the town tax was raised for any purpose, for which towns are authorized, by law, to raise money.— This objection goes to the substance of both pleas, and if well founded ⅛ feet, must prevail.

It is not to be questioned, that towns derive all their powers to raise money, by taxation, from the statutes ; and whew they vote to raise money for purposes not within the intent of the statut es, their votes are void, and afford no justification to their officers, who assess or collect the taxes. And, although we do not think, that a very narrow construction is to be given to the statutes, which, confer this power upon towns, but are of opinion, that an interpretation sufficiently liberal to enable towns fully to accomplish all the purposes, for which they were created, is to be adopted ; yet still we have no doubt, that they must be kept within the limits prescribed by law. It will not frequently happen, that towns will be disposed to raise money for improper purposes. But occasions may, and sometimes do, occur, when they are so disposed. When this takes place, individuals, who may be compelled to pay against their wills, are entitled to a remedy.. The will of individuals is not, in such a case, to be subjected-to the will of a majority of the corporation, any farther, than it is subjected by law.

It is also very clear, that the doings of towns must be proved by their records. But it seems to us, that it would be extremely mischievous to be very rigorous in the interpretation of those records. They are often drawn up by men, not very well acquainted with what the record should contain ; and not unfrequently by men so little conversant in the business of making records, as not to have at command the language necessary to give the precise meaning intended. A severe interpretation might subject town officers to very great trouble, vexation, and expense, without any advantage to the community, to compensate these inconveniences. It would have no tendency to control towns in the exercise of the power, given them to raise money. For very considerable sums may be legally voted, by towns, for the purposes specifically designated by the statute. And when the money is once in the treasury of the town, it may be voted away for purposes, not within the intent of the statutes ; and individuals, who may be thus aggrieved, seem to have no means of redress. The defect is not in the mode, in which the records of towns may be made, but in the law, which makes no provision to prevent improper expenditures of money belonging to these corporations. It is a defect, which certainly deserves the consideration of the legislature, and which the legislature alone can remedy.

But, however liberally we might be disposed to construe the statute, giving this power, and with whatever indulgence we might think the records of towns were to be considered, a plea in bar must be tested by the known and settled rule' of pleading, and by that test must stand or fall.

It is a well settled rule, that a plea, which has two intend-ments, shall be taken most strongly against the defendant.— This rule is founded upon the very reasonable presumption, that a party, in pleading, will state his case as favourably for himself, as possible. But it must be restricted in its application to pleas, which have two natural intendments. For. if the words of the plea have a natural sense, arid also an ar-tiiicial one, they shall be understood in the natural sense.— . , J And ihis is the meaning of the rule, that certainty, to a com-in on intent, is sufficient in a plea.

Thus in trespass, if the defendant plead a release, without saying at what time it was made, it shall be constru - ed to have been made before the trespass was committed. 1 Chitty's Pl. 521.—Comyn’s Digest Pleading [E. 6.]

The case of Dovaston vs. Payne, (2 H. Bl. 527,) was re-plevin for taking cattle- There was an avowrry, that the defendant was seized of the locus in quo, and took the cattle damage feasant. The bar to the avowry was, that the locus in quo lay contiguous to a highway, and that the defendant was bound to repair the fence between the locus in quo, and the way, and that the cattle, being in the highway, strayed into the close through defect of fences. To this plea, there was a special demurrer. As it is a rule of law, that the owner of a close is only bound to fence against cattle, which are lawfully in the adjoining ground, the question was, whether, by the allegation, that the cattle were in the highway, the court could intend, that they were lawfully there. Alt the judges agreed, that they could not ; and Butter, J. said, that he thought the doctrine of certainty to a common intent could not support the plea ; that was a rule of construction and not of addition, and could not add, to a sentence, words, which were omitted.

These principles, which are well settled, may be easily applied to the pleas now before us. The defendants attempt to justify the taking of the plaintiff’s property by their warrant, to satisfy a tax voted to be raised by the town of Lon-donderry. But the authority of towns to raise money, by taxation, is limited to a veiy few objects ; and it is certain, that no vote of a town, to raise money in that way, can justify its officers in collecting it, unless it be voted to be raised for * lawful purpose. If then it does not appear by these pleas, that the tax was voted for such a purpose, they must be adjudged insufficient. The allegation, upon which the counsel of the defendants rely, as shewingthat the money was raised for a lawful purpose, isy that the Unía voted to mm tkesnMfff two thousand, dollars for the expenditures of that year. The word expenditures is entirely equivocal and may, in its natural sense, signify as well the application of money to purposes, for which towns have not authority to raise money, as to purposes, for which they have such authority. And, by the rule above stated, we cannot understand by this allegation, that the money was voted to be raised for a legal purpose and the pleas must be adjudged insufficient.