Tyler v. Flanders , 58 N.H. 371 ( 1878 )

The purchaser of the horse acquired a good title. Smith v. Messer,17 N.H. 420, 429. The collector is not liable for taking and selling the horse. Roberts v. Holmes, 54 N.H. 560. As between the plaintiff and the town, the plaintiff's tax was legally assessed and legally collected. The town can keep the money. Hibbard being a selectman de facto, his official title cannot be questioned, in suits between such third persons as the plaintiff and the purchaser, the plaintiff and the collector, the plaintiff and the town. And the question is, not whether Hibbard was liable, but whether the present defendants, acting discreetly and in good faith, each having an official title that is not disputed, are liable, with no protection or indemnity (Wadsworth v. Henniker, 35 N.H. 189), for all the taxes collected on the warrant, by reason of the unknown alienage of a third person, their associate selectman de facto. The act of Feb. 8, 1791 (ss., 3, 6, 11, 22), requires the election of three or more selectmen at the annual meeting; authorizes the town to fill vacancies at any meeting; empowers the major part of the selectmen remaining in office to call a town-meeting for the purpose of filling vacancies, when, by reason of death or removal of selectmen, the major part of the number originally chosen do not remain in office; and makes the major part of the selectmen competent to act in all cases. The construction of this act and subsequent acts on the same subject, settled by usage, is, that when there are two selectmen there is a legal board. If the established practical construction is theoretically wrong, the case is one of a class in which it is proper to act upon the maxim that common opinion and common practice may be accepted as conclusive evidence of what the law is. Hibbard's alienage is an irrelevant fact. The verdict was on an immaterial question. Whether there is any other ground of defence, we need not inquire.

Judgment for the defendants.

BINGHAM and ALLEN, JJ., did not sit.