Horn v. Whittier

By the court. It is contended, in this case, that one of these plaintiffs was never qualified to act as selectman, and that Smith was never qualified to act as collector, because he had not taken the oath of office. But we are of opinion that neither of these objections can prevail. It is not denied that the plaintiffs acted as selectmen of Somersworth, for the year 1830, or that Smith acted as collector. Besides the plaintiffs are recognized in the condition of the bond, as the selectmen of Somers-worth, and Smith as collector of taxes. This was sufficient to show that they were officers, de facto, and not mere usurpers. And ns neither the persons nor the prop94 criy ol these defendants have been affected, directly, by their nmeial acts, it is enough that they were shown to ho officers de facto. These defendants are not in a situation to question the qualifications of these officers. 3 N. H. Rep. 408, Moore v. Graves. Another ground of defence, upon which these defendants rely, is, that the plaintiffs had no authority to take a bond to themselves. The statute directs the bond to be given to the town. But the form of the bond is not prescribed by statute, and this, in effect, is a bond to the town. And even if the bond is not according to the statute, having been voluntarily given, it is a valid instrument in point oflaw, and binding upon the parties to it. 5 Peter’s S. C. R. 115, The United States v. Tingey. Another ground of defence, in this case, Is, the release by one of the plaintiffs. But we are of opinion that the release is without effect. These plaintiffs are mere trustees, and no one of them can release the action without an authority from the town, for whose benefit the bond was taken. The attempt, by Horn, to discharge the action, is a fraud. 1 Chitty’s R. 390, Mountstephen v. Brooke; 1 B. & P. 447, Legh v. Legh; 4 B. & A. 419, Innel v. Newman; Douglas, 407, Payne v. Rogers; 7 J. B. Moore, 817, Manning v. Cox; 5 N. H. Rep. 268—269. Judgment on the verdict.