21 N.H. 425 | Superior Court of New Hampshire | 1850
The questions raised upon the first replication, are whether a warrant to a surveyor of highways must be under seal, and whether the rejoinder is defective in omitting the allegation contained in the plea, that the warrant was under seal.
The first of these questions must be considered definitely settled by the decision in Davis v. Clements, 2 N. H. Rep. 390,
It is said, that it is a departure not to maintain in the rejoinder the allegation made in the plea, where the warrant is set forth as being under seal. While on the other side, it is contended, that this omission is not a departure because the averment is immaterial, and might be struck out of the plea as surplusage. The rule is laid down by Chitty, (1 Ch. Pl. 632,) thus: “ If the plaintiff vary in his replication from his count, or the defendant in his rejoinder from his plea, in time, place, or other matter, when immaterial it is not a departure.” If it was not material whether the warrant was under seal or not, it is not a departure to omit that allegation in the rejoinder. The decision to which we have referre’d, shows that a warrant is as valid and effectual without a seal as with one. If an issue had been taken upon the point, whether the warrant was sealed, it would be an immaterial issue, on which judgment must be arrested, a re-pleader awarded, (1 Ch. Pl. 620, 632,) or a judgment rendered notwithstanding the verdict. Judge of Probate v. Briggs, 5 N. H. Rep. 66.
The third replication is open to the objection raised by the defendant, as indeed the first replication would have been, if objected to for that cause, that it offers an immaterial issue, and that by denying that a warrant was issued on a particular day, it tacitly admits, that one was issued on some other day. Either of these defects is good cause of demurrer. 1 Ch. Pl. 631; Com. Dig. Pleader, R. 5, R. 8.
The fourth replication raises the question, whether the statute requires the surveyor’s districts to be so limited, as to include all, whose taxes are inserted in his list; and whether any person can be included in a surveyor’s list of taxes, whose residence is
The fifth replication alleges, that the defendant did not dis-train the cows in question, under or by virtue of any warrant under the hands and seals of said selectmen. If the purpose of this replication was to raise an issue upon the point, whether the warrant was under seal, it was an immaterial matter, and it was proper for the defendant by his demurrer to inquire, whether that circumstance was of any importance, and we have already stated our impression that it was immaterial. The intent, or virtute cujus or ly virtue of the said warrant, ought not to be put in issue. 1 Ch. Pl. 587; Com. Dig. Pleader, 7. So that, if that was designed to be the point raised, the replication is bad for that cause. It is suggested in the plaintiff’s argument, that it was intended by the third replication to raise the question, whether the selectmen can legally divide the tax into summer and winter tax, and direct the surveyor to call for the labor assigned to each at those seasons only. As this is a question of much practical importance to all our towns, we do not hesitate to express our opinions upon this question. If the town vote to raise a certain amount of tax to be expended upon the highways in general terms, we do not find any authority vested in the selectmen, to direct the time or season when the same is to be expended, with the single exception, under the eleventh section, of the labor being required upon an emergency out of the district, or under the sixteenth, not being required in the district. The law imposes upon the surveyor the responsibility for the due repair of the roads in his district, and gives him the discretion to prescribe the times and places at which labor is to be done. Any direction which the selectmen may give in their warrant on this subject being unauthorized, would be regarded as mere surplus-age, and in the nature of recommendation merely, unless the warrant should be so drawn, that if this part be struck out, there would be nothing left, in which case the warrant must be void.
Towns are authorized to raise such sums of money as they may judge necessary, for making and repairing the highways and bridges therein for that year. Rev. Stat. ch. 55, § 1. And
The demurrer to the first rejoinder overruled; those to the 3d7 4th, and 5th replications, sustained.
Perley, J., having been of counsel, did not sit.