Davis v. Clements

2 N.H. 390 | Superior Court of New Hampshire | 1821

Richardson, C. J.

The first question which this case presents for our decision, is, whether a sea! is essential to the validity of the warrant of a surveyor of highways? The statute of February 27, 1786, entitled “ an act for mending “and repairing the highways in .this state,”(1) authorizes every town to raise, at their annual meetings in March, such sum of money as they shall think proper for making, mending and repairing highways and bridges ; to be assessed upon the polls and estates of the inhabitants by the selectmen in the same manner the state tax is assessed, and the same act provides that said towns shall choose surveyors of highways, and that “the selectmen shall on or before the first “ day of June after the choice of such surveyors, limit their “ several districts and give to each surveyor a list of each “ person belonging to his district and of their respective pro- “ portion of the sum voted to repair the highways as afore- “ said.” The act then directs surveyors to warn the inhabitants of their respective districts to work on said .ways*- “ and if any person shall refuse, &c. the said surveyor is “ hereby authorized and required to levy the delinquent’s “ part, or proportion of said money by distress,” &c. And the surveyors are directed by the act to settle accounts with and pay the balance if any there be in their hands, to the selectmen, or town treasurer, “agreeable to the warrants or “ directions given them for that purpose.”

Such are the provisions of our statute in relation to the assessment and collection of highway taxes, and the statute does not require a warrant under seal to be delivered to the surveyor of highways in order to enable him to make a distress. It seems now to be well settled that a seal is not essential to the validity of a warrant, unless made so by statute. Willes Rep. 411, Podfield vs. Cabell et a.—Bulleras N. P. 83.—3 Levintz 204, Aylesbury vs. Harvey. We are therefore of opinion that the warrant in this case, although not under seal, was sufficient. '

The other question to be settled in this case is, whether the surveyor’s return of his doings upon the warrant, was competent evidence to be offered by him to the jury to prove the facts stated in the return ? And we are clearly of opinion that it was not competent evidence. His warrant was not returnable process -, the statute has made it the duty of surveyors of highways to settle accounts and pay over any balance in their hands to the selectmen or town treasurer, but has not made it the duty of the surveyor to make any return of his doings upon his warrant. Where the law has made it the duty of a public officer to make a return of his doings, and has made him responsible for the truth of his return, a return may be evidence; but this is not that case.

The return of the surveyor in this case is no better evidence for him than his own confessions and declarations would beT and was clearly incompetent evidence to be offered by him to the jury.

Verdict set aside and new trial granted.