Hanover v. Dewey

58 N.H. 485

• Court: Supreme Court of New Hampshire
• Decided: August 5, 1878
• Status: Published

Opinion

Foster, J.

It would be as unreasonable in this case as it was in Smith v. Foran, 43 Conn. 244, 250, 251, to annex to the plaintiffs’ natural and just relief the condition that the owner of the property must be resisted through an expensive lawsuit. And the unreasonableness of such a requirement shows the intent of the legislature and the true construction of the statute. By s. 12, the town is liable to indemnify the owner in an action on the case. By s. 15, the town paying money “under the provisions of the twelfth section,” may recover the same, in an action on the case, of-the rioters. The meaning of s. 15 is, that in an action on the case there is a remedy for a town that pays money to the owner, when, by s. 12, it is liable to indemnify. Its remedy depends upon its discharging its liability by payment, and not upon the form of the action by which its liability is enforced.

Notwithstanding the unnecessary averment in relation to the accruing of the action, and demand and refusal, the declaration is in case.

Demurrer overruled.

Allen, J., did not sit.