The opinion of the court was pronounced by
Mattocks, J.
— The question in the case is, whether the inhabitants of the town were authorized by law to vote the tax in question. If they were, the proceedings being all regular, the defendant has made out his justification. If they were not, the plaintiffs were entitled to recover. The latter clause of the 16th section of the act relating to town-meetings, is in these words : “ Also to grant or vote any sum or sums of money, to prosecute and defend their common rights and interests.” Was the subject out of which the law-suit grew, which they voted to defend, of such a nature that the town could properly have a right or an interest therein ? What was it ? That one Alger was poor, and had been committed to jail in Burlington, leav*100ing his family in a destitute condition — that Thompson and Kimball, as overseers of the poor, assisted the family, and by direction of Alger, rept some wheat, and credited the avails thereof to the town — that for this reaping, Lapham & Co. brought an action against Thompson and Kimball, the overseers. The town, by their vote, assumed the de-fence of the suit, and appointed an agent, who defended until final judgment was rendered against the defendants in that suit: and for the expenses in so defending, and for the damages and costs recovered against the overseers, the tax was made. The town was bound to support the poor: They did so, to a certain extent. They had a right to take the standing wheat of Alger, if he so directed, either as compensation for past, or as an indemnity against future expenses of his family ; and having done so, and the .avails being in the possession of the town, and when Lap-:ham & Co. brought trespass against their servants, the right of the town to this property was directly drawn in question, and the town in defending their suit, were defending their servants, and also property which they had received as a town, and which they must have considered their own. What was this but defending their common rights ? Pending the action of trespass, the possession of, and claim to the property were in the right of the town ; that is, a supposed right; and that is all the right any party can have while the suit is in progress : No certain right .can be acquired, until the final trial; and then it would be .too date to prosecute or defend that which was already won or lost. It is during the uncertainty of the result that the defence must be made ; and, as Lord Mansfield said, in a case of a wager relating to the event of a law-suit, “ It is previously only .uncertain that the decision of a suit ivill be such as it shall afterwards happen to be.” The town then were defending their .right until the cause was finally decided against them, and there ends the defence of every right '.in a court of law. It cannot be the meaning of the statute that a town can only tax themselves to pay •the expenses of the suits they gain, leaving no way to pay the greater expenses of those that are lost. But if the ¿yvord “ rights” means legal rights, and the result of the suit shows the right was on the other side, and the overseers *101consequently wrong, yet the town had an interest in defending the suit. The overseers, in attempting to perform their general duty, mistook the law or the fact, and committed a trespass, putting the avails into the common fund of the town. If the suit was successfully defended, the town would retain this fund — otherwise not; for they could not disown the act of the overseers, and still retain this fund. ,We consider, therefore, that the town, in defending the suit of Lapham & Co. against Thompson and Kim-ball, were defending their “ common rights and interests,” or at least their common interest; and that they were authorized, by law, to vote a tax to defray the expenses thereof. It is quite obvious, that towns, like other corporations, act by their agents. It may often happen that they are interested in suits in which they are not a party upon the record.
On the trial of this cause, after the plaintiffs had rested, the defendant offered evidence tending to show that the wheat was not rept by Alger — that Thompson and Kimball knew that Lapham & Co. had a previous bill of sale of the wheat, and that no application had been made by Alger to the overseers for assistance ; which evidence being objected to, was rejected by the court. This evidence might, with propriety, have been admitted, as it tended to disprove some part of the previous showing on the part of the plaintiffs; and we incline to think it should have been admitted : But if all that was offered had been shown, still the tax would have been legal, which was the only point in the case. The error of the county court in excluding it was venial, and no wrong has been done that affected the merits of the cause. As to there having been no application by Alger to the pverseers for relief, none was necessary ; at least from him, who was in jail at a distance from his home and family who were relieved. The statute provides that if any poor person shall be under the necessity of immediate' relief, the overseers may draw on the treasurer to a certain amount. Suppose the wheat was not rept by the direction of Alger, and that evidence to this effect had been admitted, there would have been evidence both sides on this point; and should this question have been left to a jury, and the legality of the tax *102made to depend on the finding on the point, as to the knowledge of Thompson and Kimball of the bill of sale ? 'They might have known this, and still supposed it without consideration or fraudulent. The town must be supposed to have known all the circumstances; and, when they adopted the doings of the overseers, by undertaking to defend the suit against them, they took the risk of all these questions; and in the present enquiry as to the validity of the tax, it is of little importance to know the particular merits of the trespass suit, or whether the town acted judiciously in attempting to defend it, as the subject matter was within their legal powers. The tax was legal. We believe the testimony offered, if admitted, ought not to have altered the decision of the case.
The judgment of the county court is affirmed.