Bell, J.
The questions raised upon the first replication, are whether a warrant to a surveyor of highways must be under seal, and whether the rejoinder is defective in omitting the allegation contained in the plea, that the warrant was under seal.
The first of these questions must be considered definitely settled by the decision in Davis v. Clements, 2 N. H. Rep. 390, [430]*430which is precisely in point, and upon the former statute in the' very words of the Rev. Stat. ch. 55, § 4, excepting that the latter require the selectmen to give to the surveyor, with the list of the persons in his district, a warrant to collect the same. It is.urged upon us, that a warrant, ex vi termini, must be under seal; but it was holden in Davis v. Clements, and we think correctly, “ that a seal is not essential to the validity of a warrant, unless made so by statute.”
It is said, that it is a departure not to maintain in the rejoinder the allegation made in the plea, where the warrant is set forth as being under seal. While on the other side, it is contended, that this omission is not a departure because the averment is immaterial, and might be struck out of the plea as surplusage. The rule is laid down by Chitty, (1 Ch. Pl. 632,) thus: “ If the plaintiff vary in his replication from his count, or the defendant in his rejoinder from his plea, in time, place, or other matter, when immaterial it is not a departure.” If it was not material whether the warrant was under seal or not, it is not a departure to omit that allegation in the rejoinder. The decision to which we have referre’d, shows that a warrant is as valid and effectual without a seal as with one. If an issue had been taken upon the point, whether the warrant was sealed, it would be an immaterial issue, on which judgment must be arrested, a re-pleader awarded, (1 Ch. Pl. 620, 632,) or a judgment rendered notwithstanding the verdict. Judge of Probate v. Briggs, 5 N. H. Rep. 66.
The third replication is open to the objection raised by the defendant, as indeed the first replication would have been, if objected to for that cause, that it offers an immaterial issue, and that by denying that a warrant was issued on a particular day, it tacitly admits, that one was issued on some other day. Either of these defects is good cause of demurrer. 1 Ch. Pl. 631; Com. Dig. Pleader, R. 5, R. 8.
The fourth replication raises the question, whether the statute requires the surveyor’s districts to be so limited, as to include all, whose taxes are inserted in his list; and whether any person can be included in a surveyor’s list of taxes, whose residence is [431]*431not within the limits within which the surveyor has charge of the highways. The fourth section of ch. 55 of the Revised Statutes, is nearly a verbal copy, except as to the last clause, of the statute of July 3d, 1829. It provides that the selectmen, “ on or before the 1st day of May, shall limit the several surveyors’ districts, and give to each a list of the several persons in his district with the highway tax assessed to each, and a warrant to collect the same.” Whatever might have been our impression as to the true construction of this section, if the question had been entirely new, we suppose a practical construction to have been given to it, which it would be mischievous now to disturb. It has always been understood, so far as we know, or have heard, that the selectmen were to limit the portions of road which were committed to the several surveyors to keep in repair, and the persons whose highway taxes they were required to collect for that purpose, and that it has never been understood that the whole territory of a town is to be divided. Neither, so far as we are aware, has it ever been supposed that a person must reside within any particular space, to justify his name being put in the list of a particular surveyor. Rut necessity in many cases, and the convenience of all parties, sometimes requires, that the names of persons should be placed in the lists of surveyors, whose portions pf the road are at a distance, and we understand this to be done in nearly every town in the State. All the roads must be kept in repair, and often many miles jn succession are without inhabitants. Some of the people must leave the vicinity of their homes, to go there to repair them. Nor do we perceive any hardship in a person being required to perform his highway labor at any point, or in any district, where the selectmen think it is most required. And we conceive the provision made in the seventeenth section, that the surveyor shall allow the persons in his district for their time in going and returning from their work, was designed to equalize the burden, and to remove all ground of complaint that might otherwise exist. We do not overlook the force of the argument based on the words of this section, “ resident in Ms district,” but we think this argument must yield to what has long been the practical construction of this act, and [432]*432this clause must be understood, as if it were “ embraced in his district,” or “ enumerated in his list.”
The fifth replication alleges, that the defendant did not dis-train the cows in question, under or by virtue of any warrant under the hands and seals of said selectmen. If the purpose of this replication was to raise an issue upon the point, whether the warrant was under seal, it was an immaterial matter, and it was proper for the defendant by his demurrer to inquire, whether that circumstance was of any importance, and we have already stated our impression that it was immaterial. The intent, or virtute cujus or ly virtue of the said warrant, ought not to be put in issue. 1 Ch. Pl. 587; Com. Dig. Pleader, 7. So that, if that was designed to be the point raised, the replication is bad for that cause. It is suggested in the plaintiff’s argument, that it was intended by the third replication to raise the question, whether the selectmen can legally divide the tax into summer and winter tax, and direct the surveyor to call for the labor assigned to each at those seasons only. As this is a question of much practical importance to all our towns, we do not hesitate to express our opinions upon this question. If the town vote to raise a certain amount of tax to be expended upon the highways in general terms, we do not find any authority vested in the selectmen, to direct the time or season when the same is to be expended, with the single exception, under the eleventh section, of the labor being required upon an emergency out of the district, or under the sixteenth, not being required in the district. The law imposes upon the surveyor the responsibility for the due repair of the roads in his district, and gives him the discretion to prescribe the times and places at which labor is to be done. Any direction which the selectmen may give in their warrant on this subject being unauthorized, would be regarded as mere surplus-age, and in the nature of recommendation merely, unless the warrant should be so drawn, that if this part be struck out, there would be nothing left, in which case the warrant must be void.
Towns are authorized to raise such sums of money as they may judge necessary, for making and repairing the highways and bridges therein for that year. Rev. Stat. ch. 55, § 1. And [433]
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Bell, J.
The questions raised upon the first replication, are whether a warrant to a surveyor of highways must be under seal, and whether the rejoinder is defective in omitting the allegation contained in the plea, that the warrant was under seal.
The first of these questions must be considered definitely settled by the decision in Davis v. Clements, 2 N. H. Rep. 390, [430]*430which is precisely in point, and upon the former statute in the' very words of the Rev. Stat. ch. 55, § 4, excepting that the latter require the selectmen to give to the surveyor, with the list of the persons in his district, a warrant to collect the same. It is.urged upon us, that a warrant, ex vi termini, must be under seal; but it was holden in Davis v. Clements, and we think correctly, “ that a seal is not essential to the validity of a warrant, unless made so by statute.”
It is said, that it is a departure not to maintain in the rejoinder the allegation made in the plea, where the warrant is set forth as being under seal. While on the other side, it is contended, that this omission is not a departure because the averment is immaterial, and might be struck out of the plea as surplusage. The rule is laid down by Chitty, (1 Ch. Pl. 632,) thus: “ If the plaintiff vary in his replication from his count, or the defendant in his rejoinder from his plea, in time, place, or other matter, when immaterial it is not a departure.” If it was not material whether the warrant was under seal or not, it is not a departure to omit that allegation in the rejoinder. The decision to which we have referre’d, shows that a warrant is as valid and effectual without a seal as with one. If an issue had been taken upon the point, whether the warrant was sealed, it would be an immaterial issue, on which judgment must be arrested, a re-pleader awarded, (1 Ch. Pl. 620, 632,) or a judgment rendered notwithstanding the verdict. Judge of Probate v. Briggs, 5 N. H. Rep. 66.
The third replication is open to the objection raised by the defendant, as indeed the first replication would have been, if objected to for that cause, that it offers an immaterial issue, and that by denying that a warrant was issued on a particular day, it tacitly admits, that one was issued on some other day. Either of these defects is good cause of demurrer. 1 Ch. Pl. 631; Com. Dig. Pleader, R. 5, R. 8.
The fourth replication raises the question, whether the statute requires the surveyor’s districts to be so limited, as to include all, whose taxes are inserted in his list; and whether any person can be included in a surveyor’s list of taxes, whose residence is [431]*431not within the limits within which the surveyor has charge of the highways. The fourth section of ch. 55 of the Revised Statutes, is nearly a verbal copy, except as to the last clause, of the statute of July 3d, 1829. It provides that the selectmen, “ on or before the 1st day of May, shall limit the several surveyors’ districts, and give to each a list of the several persons in his district with the highway tax assessed to each, and a warrant to collect the same.” Whatever might have been our impression as to the true construction of this section, if the question had been entirely new, we suppose a practical construction to have been given to it, which it would be mischievous now to disturb. It has always been understood, so far as we know, or have heard, that the selectmen were to limit the portions of road which were committed to the several surveyors to keep in repair, and the persons whose highway taxes they were required to collect for that purpose, and that it has never been understood that the whole territory of a town is to be divided. Neither, so far as we are aware, has it ever been supposed that a person must reside within any particular space, to justify his name being put in the list of a particular surveyor. Rut necessity in many cases, and the convenience of all parties, sometimes requires, that the names of persons should be placed in the lists of surveyors, whose portions pf the road are at a distance, and we understand this to be done in nearly every town in the State. All the roads must be kept in repair, and often many miles jn succession are without inhabitants. Some of the people must leave the vicinity of their homes, to go there to repair them. Nor do we perceive any hardship in a person being required to perform his highway labor at any point, or in any district, where the selectmen think it is most required. And we conceive the provision made in the seventeenth section, that the surveyor shall allow the persons in his district for their time in going and returning from their work, was designed to equalize the burden, and to remove all ground of complaint that might otherwise exist. We do not overlook the force of the argument based on the words of this section, “ resident in Ms district,” but we think this argument must yield to what has long been the practical construction of this act, and [432]*432this clause must be understood, as if it were “ embraced in his district,” or “ enumerated in his list.”
The fifth replication alleges, that the defendant did not dis-train the cows in question, under or by virtue of any warrant under the hands and seals of said selectmen. If the purpose of this replication was to raise an issue upon the point, whether the warrant was under seal, it was an immaterial matter, and it was proper for the defendant by his demurrer to inquire, whether that circumstance was of any importance, and we have already stated our impression that it was immaterial. The intent, or virtute cujus or ly virtue of the said warrant, ought not to be put in issue. 1 Ch. Pl. 587; Com. Dig. Pleader, 7. So that, if that was designed to be the point raised, the replication is bad for that cause. It is suggested in the plaintiff’s argument, that it was intended by the third replication to raise the question, whether the selectmen can legally divide the tax into summer and winter tax, and direct the surveyor to call for the labor assigned to each at those seasons only. As this is a question of much practical importance to all our towns, we do not hesitate to express our opinions upon this question. If the town vote to raise a certain amount of tax to be expended upon the highways in general terms, we do not find any authority vested in the selectmen, to direct the time or season when the same is to be expended, with the single exception, under the eleventh section, of the labor being required upon an emergency out of the district, or under the sixteenth, not being required in the district. The law imposes upon the surveyor the responsibility for the due repair of the roads in his district, and gives him the discretion to prescribe the times and places at which labor is to be done. Any direction which the selectmen may give in their warrant on this subject being unauthorized, would be regarded as mere surplus-age, and in the nature of recommendation merely, unless the warrant should be so drawn, that if this part be struck out, there would be nothing left, in which case the warrant must be void.
Towns are authorized to raise such sums of money as they may judge necessary, for making and repairing the highways and bridges therein for that year. Rev. Stat. ch. 55, § 1. And [433]*433we think it clear, that towns may raise such sums, to be expended at such times as they may judge necessary; and if a sum is so voted to be raised and expended in the summer, the selectmen may issue their warrant to the surveyor to raise such sum according to the vote. So if the town vote to raise a certain amount of tax to be expended in repairing the roads in winter, the selectmen will have the right to issue their warrant to the collector for that purpose, and direct him to collect or call for the labor after the first day of December, for instance, and the warrant will be a legal warrant, and will give to the surveyor authority to call for the tax after the time limited in the warrant, and not earlier. It is hardly necessary to add, that what may lawfully be done by two warrants, may be equally well and lawfully done by one warrant properly drawn for that purpose.
The demurrer to the first rejoinder overruled; those to the 3d7 4th, and 5th replications, sustained.
Perley, J., having been of counsel, did not sit.