Stoddard v. Gilman

The opinion of the court was delivered by Poland, J. 1. The first question in this case arises upon the defendant’s motion to dismiss the plaintiff’s suit for want of a recognizance for costs. We think this motion was correctly overruled. In all the classes of replevin suits, provided for by our statute, the plaintiff is required, before his writ is served, to give a bond to the defendant, with sufficient surety, in double the value of the property to be replevied, one of the conditions of which bond is, to pay all such costs, as the defendant may recover in the suit against him. This was doubtless intended to be the only security for costs, which the plaintiff is required to give, and to stand in the place of the recognizance, required in ordinary cases. The action of replevin [572] was indeed known at -common law; but the whole form of proceeding, in the commencement and subsequent proceedings, in this state, is regulated by statute ; and as no other security, except the bond, is required by the statute itself, or the prescribed form given by the statute, none other -need be furnished. Such has been the uniform practice in this form of action, so far as we have any knowledge. Under our old statute, which was similar to the present in this respect, it was held, that no recognizance for costs was necessary. Dunshee v. Stearns, 1 Aik. 149. 2. The records of the town meeting held on the first Tuesday of March, 1847, at which meeting the tax, under which the defendant justifies the taking of the plaintiff’s -property, was voted, have not been furnished to us, and we cannot of course determine any of the questions raised as to the validity of the proceedings of that meeting, or of the tax voted at that time. The only question, which is raised by the exceptions, -as to the validity of this meeting, is upon the plaintiff’s offer to show, that the notices for the meeting were not posted at the place, where such notices had usually been posted. The statute does not require, that the notices shall be posted at the same-places every year, but only requires, that the selectmen “ shall post up notices at three public places in their respective towns” &.c. The plaintiff’s offer, if true, would not show, that the notices were not given in conformity to the statutehence the evidence offered was correctly excluded. 3. Another objection is raised to the validity of the tax, under which the defendant justifies the taking, by the plaintiff’s third plea to the defendant’s avowry. In this plea the plaintiff avers, that there was no legally laid out Lake road in the town of Westmore, as specified in the vote raising the tax. The evident intention of the plaintiff’s counsel, in this plea, was, to show that the tax was raised for the purpose of being expended in a manner and for a purpose not eoming properly within the sphere and scope of their corporate powers and duties, and so not legally collectable. But what is alleged in this replication may, as we think, all be true, and yet this Lake road be one, for which the town of Westmore might well raise money to lay out, or one which they might be compelled to keep in repair. The amount of the plaintiff’s allegation is, that this road was never “legally laid [573] out.” This may he true, and yet the town, by adoption, or prescription, may have become liable to keep the road in repair, in the same manner and to the same extent as if the road had been legally laid out in the first instance. This plea was therefore correctly adjudged insufficient by the county court. 4. The remaining question in the case is upon the sufficiency of the plaintiff’s second plea, to the defendant’s avowry, wherein the plaintiff sets up a subsequent meeting of the voters of the town of Westmore, and a reconsideration of the vote to raise the sum of five hundred dollars, under which the defendant justifies. This latter vote to reconsider is alleged in the plea to have been passed on the twenty fifth day of March, 1847. In the defendant’s plea it is alleged, that the tax bill, upon the tax raised on the first Tuesday in March, was made out on the twenty fifth day of. March, by the selectmen, and delivered to the defendant for collection on the twenty sixth day of March. These facts all standing admitted by the pleadings, the question is raised as to the effect of this vote to reconsider. The statute, in terms, authorizes towns to raise money by voting taxes, but is silent as to any power to reconsider, or rescind, such yotes. But on consideration of this case we are all satisfied, that, to a certain extent, this power must exist. A vote to raise money for town purposes is a mere declaration, or resolution, on the part of the town alone, and not in the nature of a grant, or contract between the town and an individual. As said by Judge Parsons in Pond v. Negus, “ it is merely a resolution to provide themselves with money.” So long as this rests in mere resolution, and has not been acted upon, we think the town must have the power to rescind or reconsider it. Until something has been done under the vote, the town are alone interested in it, and may alter their r.esolve at their own pleasure. If the town have not this power, great inconveniences might arise. At the time of voting a tax there might be the strongest apparent necessity for the town to raise a sum of money.; but before any thing is done towards its collection, such necessity may wholly have passed by and the money be entirely needless to the town. Is it true, that they must proceed to collect the tax, whether needed, or not? What would be the effect of such a vote, after preceedings had been had under it and the tax partially collected, it is not necessary [574] now to decide. Clearly the collector could not be made a trespasser, for any thing already done by him ; and perhaps such a vote would be wholly inoperative. In the present case it seems nothing had been done; the tax bill had not even been delivered to the collector, and perhaps not made out by the selectmen. Under these circumstances we are of opinion, that the town had the right to retrace their steps and rescind, or reconsider, the vote raising the tax ; and having done so, the collector could not legally proceed to collect it. For this reason, therefore, the judgment of the county court is reversed, and judgment will be entered, that the plaintiff's second plea is sufficient. The defendant applied for leave to withdraw his demurrer to the plaintiff’s second plea, — which was allowed, on terms.