Goodwin v. Perkins

39 Vt. 598 | Vt. | 1867

The opinion of the court was delivered by

PlERPOiNT, Ch. J.

It is claimed on the part of the plaintiff that the rate bill and warrant, under which the defendant justifies the taking of the horse in question, cannot be made available for that purpose, for the reason that Stephen Andrus, acting as prudential committee of school district No. 11, in the town of Castleton, in making the certificate which he appended to the rate bill, dated it May 2d, 1852, that time being long prior to his appointment as such committee, and before the grand list for 1862, on which the tax purports to have been assessed, was made up and completed. The certificate on its face shows that the rate bill to which it was attached was of a tax assessed on the grand list for the year 1862, and was in accordance with a vote of the, inhabitants of said district at a meeting holden on the first Tuesday in March, 1862 ; all this is conceded to be correct. If the certificate had not been dated at all, no question could have been made as to its sufficiency, the certificate would have been just as good without a date as with one. All the material facts are correctly stated in it. This being so, an erroneous date, we think, cannot have the effect to invalidate it. The fact that at that time there was no grand list for 1862 oji which the tax could have been assessed, and it being several months prior to the time when Andrus was appointed committee, shows clearly that the error was purely a clerical one.

Again, parol evidence was clearly admissible to show the true time when the rate bill and certificate were made.

The principle that parol evidence is admissible to show the time when any simple written contract was executed, although it differs from the date of the instrument, is too well settled at the present day to admit of discussion.

This is not like the cases to which our attention has been called by the counsel for the plaintiff where the statute requires a certificate to be made of the day, month and year when a writ is signed, in an action brought to recover a penalty, in such cases there must be a strict compliance with the statute.

It is further insisted that the warrant was defective, in that, it was directed to the defendant as a private individual, and not as collector of school district No. 11. As this question does not appear to have been raised in or passed upon by the county court, we have no occasion to examine it here. As the plaintiff pointed out his objections to the warrant, and omitted to include this among the number, it must now be regarded as having been waived.

The omission of the defendant to enter upon the warrant the true day and year when he received the same, we do not regard as sufficient to invalidate his proceedings. The time when it was in fact received may be shown by other evidence than such $>n entry. This was expressly decided in Fletcher v. Pratt, 4 Vt. 182, in respect to a like entry by a sheriff- vi^on an execution.

The fact that the warrant was subsequently altered by the magistrate who signed it, with a view of making it a warrant for another tax bill, can have no effect upon this case, as the alteration was made long after the taking of the property that is now complained of; the warrant, as altered, was admissible as showing upon its face what it was before it was altered, accompanied with evidence showing who altered it, for what purpose, and how the warrant was at the time the property was taken. If the warrant was sufficient when the property was taken, any such subsequent alteration of it would not invalidate the acts of the defendant done under it.

But it is claimed by the plaintiff that the whole proceedings weré irregular and void, from the alleged fact that Andrus, at the time he assessed the tax and made out and delivered the rate bill and warrant to the defendant, was not the prudential committee of the district, and had no authority to make out and deliver the same.

It appears that J. F. Johnson, who at the annual meeting in March, 1862, was duly elected the clerk and prudential committee of the district, and who held those offices until the following September, then enlisted in the army and was about to leave the state. He informed the inhabitants that he was about to leave the district and could no longer serve as clerk and committee. At the request of some of the inhabitants of the district, he duly warned a meeting of the voters of the district to elect a clerk and prudential committee to fill the vacancies thus occasioned. The voters of the district assembled agreeably to the warning, and after the meeting was duly organized proceeded to elect a clerk, and also elected the said Andrus as prudential committee in the place of said Johnson. The said Johnson thereupon delivered the records and papers appertaining to the offices to the said clerk and the said Andrus, and soon after left the state. From the time of his said election the said Andrus acted as, and discharged the duties of, the prudential committee of said district until after the taking of the property of the plaintiff by the defendant as alleged in the plaintiff’s declaration; no other person acting or-claiming to act-^s such committee, and no other person being elected or appointed to that place ; and it does not appear that any person objected to his so acting, or questioned his right to do so.

Whether there was a vacancy in the office of committee at the time when Andrus was elected; or whether the district had a right at a meeting warned for the purpose, to elect a person to fill the vacancy if it existed, or whether the vacancy should have been filled by appointment |by the selectmen of the town, are questions which we do not find it necessary now to decide.

Andrus was elected by the district as its prudential committee, he held the office under that election, claiming the rights and discharging the duties of the position, he was prudential committee in fact if not of right, and this we think is all that was necessary to enable the defendant, as the legal collector of the district, to justify under his acts. The case of Woodcock v. Bolster, 35 Vt. 632, is a full authority upon this point. The -question in that case was as to the validity of the election of the district collector. It was claimed to be void on the ground that the clerk who warned the meeting at which the collector was elected, was not a legal clerk of the district and had no authority to call the meeting. The court say, “ the clerk held and exercised the office by virtue of an election at a meeting of the voters of the district publicly called, and held the office, úe facto, which, so far as third persons are concerned, is all that is required to make his acts valid.”

Under the circumstances of this case the plaintiff can no more question the authority of the prudential committee who made out the tax bill, than he can that of the justice of the peace who signed the warrant; the justice may not have been legally elected, or may not have been sworn. Yet it has always been held in this state, that the fact that a person assumes to exercise the duties of a justice of the peace, and to act in that capacity, is sufficient to justify any person who acts under the authority of any precept signed by him, that is legal and sufficient upon its face.

This view of the case renders all 'exceptions as to the admission or rejection of evidence as to the warning of, or proceedings at, the district meeting, or to the charge of the court in respect thereto, wholly immaterial.

The claim that the county court erred in submitting to the jury the question as to what the plaintiff’s counsel had admitted in the course of the trial, is one, that if it was an error, the plaintiff cannot avail himself of. We think, under the circumstances, as they appear^n the case, the court would have been fully justified in telling the jury that the facts were admitted, and that they were so to regard them in considering the case-. If that had been done, the result would have been the same, so that the plaintiff has not been prejudiced by having an opportunity to go to the jury with the question, even though he was not entitled to the privilege.

The county court were clearly right in refusing to entertain an exception to the entire charge. Counsel should always be required to specify the particular points in the charge, or in the omission to charge, to which they take exceptions. The attention of the court should be immediately called to any error that is claimed in this respect, and before the jury leave their seats. The judge may by mistake have omitted to charge upon some.point about which there is no controversy, but upon which the party is entitled to a charge, and when the judge on his attention being called to the omission would at once correct the mistake. To allow an exception to the entire charge in such a case would be to make the exception a mere trap to be sprung upon the court and the opposite party, after it was-too late to avoid it.

We find no error in the proceedings of the court below.

Judgment of the county court is affirmed.-