Ainsworth v. Dean, 21 N.H. 400

GriLCHRiST, C. J.

Several of the exceptions taken in this case must be sustained, and it will therefore be unnecessary to consider the others.

1. There is no evidence that the selectmen took the oath of office according to the statute. A certificate that they were “ qualified by J. C. Clement ” is insufficient. Gibson v. Bailey, 9 N. H. Rep. 177.

2. By the act in force at the tíme of the decision of the case of the Souhegan Factory v. McConihe, 7 N. H. Rep. 309, a parol appointment of a collector, by the selectmen, was sufficient. N. H. Laws, 252, § 8. (Ed. of 1830.) By the Rev. Stat. ch. 99, § 6, such an appointment must be in writing and recorded. The case finds that no appointment was made by the selectmen. This appointment is something distinct from the warrant, which is separately mentioned, and it is provided that the appointment must be in writing. Rev. Stat. ch. 109, § 8. There is to be a warrant in all cases accompanying the list of taxes, and an appointment in writing when the choice is made by the selectmen.

8. The list of taxes is defective, because the name of the original owner, though known, was not inserted therein. Rev. Stat. ch. 46, § 1. Cardigan v. Page, 6 N. H. Rep. 192. It is also defective because neither the number of the lot nor of the range is inserted, although it appeared that the lands were lot-ted. Rev. Stat. ch. 46, § 1. The land is described as “ sixty-eight acres, part of governor’s right.” This description is altogether too indefinite. The statute provides that the description must be such “ as the land may be readily known by,” and this description does not answer such a requirement. Rev. Stat. ch. 46, § 1. Brown v. Dinsmoor, 3 N. H. Rep. 103.

4. It is provided by law that so much of the owner’s estate shall be sold as will pay the taxes and incidental charges. Rev. Stat. ch. 46, § 8. No regard appears to have been paid to this provision in the sale, and no reason is given why the law was not complied with, if indeed any reason could be considered as sufficient. The whole lot was advertised and sold for the amount of taxes and costs as estimated by the collector. For these reasons we are of the opinion that the action cannot be maintained. But we are of opinion that the second position stated in the case, which is, that the votes of the town for the year 1843, did not authorize the raising of any tax, is not tenable. These votes were, “ to raise the sum of $1500, to defray town charges also, “ to raise the sum of $1500, to repair highways in summer and the like sum in winter if needed.”

In the case of Adams v. Mack, 3 N. H. Rep. 497, a distinction is taken by the counsel arguendo, between the charges and expenditures of the town, and there is undoubtedly a substantial distinction to be made between the two. The word “ charges,” as it is used in the statute, means the debts legally due from, or the expenses properly incurred by, a town ; whereas the word “ expenditure ” merely means the spending of money. Raising money to pay whatever is a charge on the town is a different thing from raising money to repay whatever the town may have expended, for they may have spent money for illegal and improper purposes, Webster defines the word “ charge ” to be “ cost, expense; as, the charges of the war are to be borne by the nation.” He defines the word “ expenditure” to be “ the act of expending, a laying out, as of money; disbursement, money expended, expense.” As the vote here was to raise money to pay town charges, and as we think the word charges’ means the sums which the-town was legally liable to pay, we think this exception cannot be. maintained. According to the provision in the case, the verdict must be set aside, and the plaintiff must become

Nonsuit.

Case Details

Case Name: Ainsworth v. Dean

Court Name: Superior Court of New Hampshire

Date Published: Dec 15, 1850

Citation: 21 N.H. 400