11 N.H. 141 | Superior Court of New Hampshire | 1840
This suit is brought against the selectmen of Newington, to recover damage for distraint of property made under the directions of the selectmen, for the collection of a highway tax assessed against the plaintiff. The selectmen were duly elected and qualified, but it is incumbent on them to show farther that the tax assessed by them was duly voted.
It was part of the business of the annual town meeting, as specified in the warrant, “to determine what sum of money should be raised to defray the expenses of the town for the year and under this article a vote was passed “ to raise for the use of the town five hundred dollars.” This vote is perfectly distinct, and legal, and had the tax which was levied upon the plaintiff’s property been assessed under it, it would not have been subject to exception. But the town proceeded farther, and voted “ to assess one day’s work on a poll, to be worked on the road, and in that proportion on the inventory and the selectmen made the assessment of which the plaintiff complains, under this vote, reckoning a day’s work at seventy-five cents per day, and this tax they required the constable to collect.
It is perfectly evident that the selectmen could make no valid assessment under the last vote, except by changing it into a money tax. It furnishes no data of computation by
It is also clear that such a vote cannot be explained by previous practices of the town, or by the testimony of those present. We permit the record in some cases to be amended, where it is informally entered up, and where there is sufficient matter apparent upon it to show the actual proceedings had ; but here the whole is left to conjecture ; nothing in the record gives any indication of the extent of the tax designed to be raised by the town, and the assessment and levy is wholly without any legal foundation.
The plaintiff is, therefore, entitled to judgment, unless the exception taken to the maintenance of the action, on the ground of a deficiency of parties, should be sustained. The exception taken is that the plaintiff, who is one of several joint owners merely, cannot maintain an action of trespass in his own name.
This is undoubtedly true, where the exception is taken seasonably in abatement. Thus, if there be several part owners of á chattel, and an injury be done to it, regularly all the part owners ought to join in an action to recover damages for that injury; but as the rule is established for the defendant’s benefit, he may waive this benefit by not taking the exception in abatement; and he cannot take advantage of the irregularity, under the general issue, although it should appear by the plaintiff’s own shewing that he is part owner. 2 Mass. 511, Hart vs. Fitzgerald; 17 Ditto 182, Patten & a. vs. Gurney & a.
In actions, in form, ex delicto, if a party who ought to join be omitted, the objection can only be taken by plea in abatement, or by way of apportionment of the damages on the
As no plea in abatement was filed in this case, the exception as to nonjoinder of plaintiffs is too late.
Judgment on the verdict for the plaintiff.
