Cotton v. Phillips , 56 N.H. 220 ( 1875 )

I fully agree with the results reached by my brother SMITH; but I desire, also, to express my very great doubts whether, if the petitioner had not accepted the inconsistent office, he ought to be permitted in this way to upset the doings of the district meeting. Assuming that he did not know that the election was by plurality until after the election of Furber and the dissolution of the meeting, still I think that such ignorance, in a matter so easy to ascertain, ought to have the effect of a waiver of his right. It is admitted on all hands that there was no intentional wrong, — that the whole difficulty was the result of an honest mistake; but I think that after making that mistake, and acquiescing the doings of the meeting, he ought not now to be permitted to object.

These considerations assume greater importance when we consider the nature of this particular case. This election took place in March, 1875, and the decision was reached in December. What has been done meanwhile? Has the district lost its schooling for the year? or has the party in possession of the office been holding it at his peril? If these defendants have mistaken their rights or duties, would that mistake have excused them from the consequences of this proceeding? If their ignorance of the law will not excuse the defendants from these consequences, why should the plaintiff be permitted to take advantage of his ignorance of the law?

LADD, J., concurred.

Petition dismissed.