Atwood v. Town of Lincoln

44 Vt. 332

• Court: Supreme Court of Vermont
• Decided: January 15, 1872
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, J.

This action was assumpsit to recover a town bounty.

The warning for the town meeting of December 12th, 1868, did not authorize the town to vote to borrow money. Black v. Col-chester, 39 Vt., 193. And tbe vote for that purpose imposed no obligation on .tbe town.

The warning for the town meeting of December 28th did not authorize, nor did the town ,by its vote attempt to confirm and legalize the invalid proceedings of December 12th. The last vote authorized the town to pay a bounty of $50 to each volunteer who should be mustered into the service to fill the quota, &c.

The jury have found, under the charge of the court, that the plaintiff had no knowledge of this vote, and did not act in the faith of it, when mustered into the service ; — that the defendant town filled the quota with-other men, without notice of plaintiff’s enlistment or muster in. And it is quite apparent that the plaintiff was not “ mustered into the service as one of the quota of this town, under the last call of the President.”

If the votes of the town were both legal and valid, the plaintiff could not recover. The town had in good faith filled its quota without notice of plaintiff’s enlistment. And it has been repeatedly adjudged by this court, that a totvn that fills its quota, in good faith, is not liable to pay a bounty to others, who may have enlisted, and been mustered in at an earlier date, but ‘of which the town had no notice, when such enlistment was not applied on the quota.

The plaintiff has not brought himself within the terms of the vote. Witherell v. Fletcher, 42 Vt., 409.

The recent decisions of this court upon this question are brought together, collated and analyzed by Barrett, J., in Bucklin v. Sudbury, 43 Vt., 700.

As we have no disposition to modify the rule of law that has been established, there is no need of repeating the reasons on which the rule is founded.

The judgment of the county court is affirmed.