Town of Thetford v. Hubbard

The opinion of the court was delivered by Redfield, J. The first question made in the present case is in regard to the validity of the defendant’s note, given to the town for the price of the office of constable, which was set up at auction in open town meeting and sold to the highest bidder, the defendant, for $16,50, for which he gave the note in suit. It is claimed, that this note is void, the consideration being illegal, or for the price of a thing, the sale of which the law will not countenance. In the absence of all statute law upon the subject, I should incline to the same view. I think, that the open and unblushing sale of offices, at public auction, is more detrimental to [447] public morals and public taste, and more subversive of the rights and liberty of the citizen, than when the same thing is accomplished in a more indirect and circuitous mode; — which will always be more or less the case, no doubt, in free governments. But we trust, that the open sale of offices, for a specified sum of money, told down, as the price of the bribe, will not soon become general. But if the legislature should pass a law, making all offices venal, from the lowest to the highest, it is not easy to say, that securities for the price would not be perfectly valid. So, too, if the legislature legalizes prostitution, gambling, or any other immorality, it is difficult to say, how the courts could pronounce the laws invalid upon any supposed ground of public policy, which would not equally subject all laws to the same ordeal, and virtually make the judiciary a co-ordiriate branch of the legislature. The validity of this note, then, depends upon the fair construction of the statute upon this subject, — -Rev. St. 93, § 63, — which provides, that “ The inhabitants of any town shall have liberty to agree “ with some suitable person to fill the office of first constable, in “ such method as they shall judge most advantageous, and such per- “ son shall afterwards be chosen by the town.” Here it is expressly provided, that the inhabitants of any town may make such bargain in regard to this office, as they shall deem most advantageous; the office may be sold, or bought. The mode of sale, then, whether at public auction, or not, is mere matter of convenience, or taste,— the essence of the thing is, whether the office may be sold, or farmed out. Upon this subject the statute is too explicit, and the practical, construction has been too long and uniformly in favor of such a construction, to be now brought in question. And we think, the practice of putting the office up at public auction has not been without frequent and early precedents, in some sections of the state. And we see no objection to the mode. Every voter is to be esteemed competent to discharge the duties of any office, to which he can obtain an election; the only other requisite qualification for this office, under our statute, is, that he will give the highest price for the office. This will best be determined by bidding,, and he must then be regularly instituted into the office, hy an election,— which two things, paying the highest price, and getting the greatest [448] number of votes, estops every one from denying, that he is the most suitable person for the office. We next have questions upon both sides, in regard to the correctness of the judgment rendered upon the report. 1. It is claimed, that the plaintiffs’ exceptions are waived, because they were not filed within thirty days after the rising of the court, at which the judgment was rendered. But we think, the provision of the statute in regard to that matter has reference only to the final judgment in the case. It is obvious, that all the provisions of the statute can only apply to such a judgment, — for instance, that in regard to the clerk striking off the entry of exceptions, and issuing execution. The evil to be remedied under the former law, the releasing of bail and attachments by delay of entering exceptions, had no application to any interlocutory judgment. The statute was enacted chiefly, we think, to enable the party prevailing to have some certain rule, by which he might know, when he was entitled to execution. This has been so decided before by this court. 2. It is claimed, that all that portion of the account, which accrued subsequent to the bringing of the suit, cannot come into the plea of set off, because the statute provides, that no sum, not due and owing at the commencement of the suit, shall be pleaded in offset. But we think, this provision has reference to the subject matter of the plea, whether contract, or book account. If so due, that an action could be maintained upon it contemporaneously with the principal action, then it may be pleaded in offset. If none of the account were due, the plea must fail. But if any part were due, the plea is sustained, and the whole account must be adjusted, in the ordinary way, as is expressly provided. An account is an entire thing, and cannot be subdivided into parcels. The obligation is only to pay the balance; and if pleadable at all, it must be for the balance. 3. The items of account for keeping Mrs. Percival were correctly rejected. The auditor does not find any contract between the defendant and the overseer for pay for keeping this person. She was not an acknowledged pauper ; and the facts reported show, that the overseer did not intend to so regard her. Perhaps he should have so regarded her; but we cannot go beyond the facts. [449] In regard to the plaintiffs’ replication in offset, two general questions are raised; — 1. In regard to the merits of that claim, upon the general facts, as they are disclosed upon the record ; — 2. As to the forms of the pleading. The first is doubtless the more important inquiry. For as the facts seem to be admitted to be substantially set forth upon the record, whichever party fails in the substantial merits, upon this point, must ultimately fail in the suit, and be cast in the general costs of the litigation. As mere defects in the forms of pleading may always be amended upon terms, even in this court, unless in dilatory pleas, that question becomes of less ultimate importance. 1. Upon the question, whether the tender was sufficient, we think the case is with the defendant. I at first entertained doubts, whether it was competent to plead a gross sum to several demands, but no question of the kind is made in the argument; and in looking into the books upon pleading, and the precedents, I am satisfied the plea is good in this respect. In 3 Steph. N. P. 2601, it is said, a tender of a gross sum to several creditors, if they refuse it generally, is good. Black v. Smith, Peake 121. This may not be sound law ; but the precedents all show, that a defendant may plead,‘generally, tender to several counts for different demands; and if so, he may surely make the tender in that mode. 2. There seems to be no question whatever, from the authorities, that a demand, to avoid the tender, must be of the precise sum tendered ; and if of a different sum, the debtor is not bound to regard it. As to the form of the plea of tender, we have entertained more doubt; but have not been able to find any defect, clearly fatal upon general demurrer. 1. The replication in offset is in two counts, substantially for the same cause, and would no doubt be so regarded, upon a question of jurisdiction before a justice, whether upon the point of the final or ultimate jurisdiction. 2. It seems to have been so regarded by the parties to this suit; as they have made no account whatever of the second count. 3. But if the counts were obviously for distinct and independent claims, a general plea of tender to the whole declaration is to be treated as a tender upon each count, and the debtor may, in proof, apply it to either count. Patterson, J., in Robinson v. Ward et al., 8 Ad. & E., N. S., [55 [450] E. C. L.,] 920, “ If there were a general plea of tender to three special counts, the contract in each count would be admitted.” Bulwer v. Horne, 4 B. & Ad. 132. Douglass et al. v. Patrick, 3 T. R. 683. This disposes of the only serious question we have had,' — whether the amount tendered was sufficient to cover the whole declaration. The other defects in the plea are, we think, merely formal, and not fatal upon general demurrer. Judgment affirmed.