Abbott v. Strafford , 51 N.H. 148 ( 1871 )

Foster, J. I.

It becomes immaterial to consider the plaintiffs’ exception to the admission of evidence tending to show that Foye and Hanson communicated information which led to the arrest of the robbers, since it is conceded by the plaintiffs in their argument that the jury found, by their verdict, that such information was not communicated, and the general verdict was in favor of the parties taking the exception.

II. The second exception in the case is taken by the defendants, to the exclusion of their offer to show that soon after the demand made by Abbott and Warren upon the selectman, Perkins, the said Abbott and Warren brought a suit against the defendants, in which Foss was not joined as a plaintiff.

And the defendants contend that from this fact the jury would be warranted in discrediting the plaintiffs, Abbott and Warren, and rejecting their evidence altogether, — their testimony being material and essential to the support of the action. The effect of the evidence, if admitted, however, would be to show, not that Foye and Hanson should have been joined (which was the main ground upon which the defence was based), but to show, so far as it might have any effect, that the defence set up was not warranted by the facts.

But we are disposed to regard it as wholly irrelevant to the issue presented to the jury. It is true, indeed, as matter of law, that all those who jointly performed the service for which the reward was offered should join in the suit — Janvrin v. Exeter 48 N. H. 86—and that,, if Foss was jointly engaged with Abbott and Warren in the service; performed, the former suit could not have been maintained.

If tbe former suit was thus commenced under a misapprehension of tbe law, tbe commencement of such suit and its abandonment could surely be no bar to tbe maintenance of a subsequent suit by proper parties ; and there can be no inference of law, nor presumption of fact, that Abbott and Warren would have attempted to sustain tbe former or tbe present suit by perjury;' nor can their conduct, in bringing a suit in which another party, entitled in fact to be joined with them, was not joined, be submitted to the jury as an indication that the parties are disreputable.

III. The third exception is to the exclusion of Leighton’s testimony. This was irrelevant and immaterial, and its rejection furnishes no ground for exception. It was merely a statement of Abbott as to the terms upon which he would be willing to effect a compromise with Hanson, Foss, and Foye, concerning their uncertain claims and unas-certained rights to share in the reward. But if the evidence was offered by the defendants for the purpose of showing an admission by Abbott, one of the plaintiffs, that certain parties were entitled to share in the reward because they gave information which led to the arrest, the evidence is made immaterial, and was properly rejected on other grounds, viz., that those parties alone are entitled to the reward who actively’ assist by their manual efforts (or, at least, by such aid and comfort as would make them principals in the commission of a crime) in apprehending and securing the robbers.

The statute authorizes selectmen to pay a reward to any person who shall “ apprehend and secure ” a person charged with the commission of any capital or other high crime. Comp. Stat., cli. 236.

In Wisconsin, a reward was offered “for the arrest and conviction ” of murderers. The plaintiff, in an action to recover the reward, communicated information to the police, which led to the arrest and conviction of the murderers. But it was held that he was not entitled to the reward. Austin v. Supervisors of Milwaukee Co., 24 Wis. 278;—see, also, Janvrin v. Exeter, before cited.

In accordance with this decision would seem to be the most practicable rule, — namely, that those only who actually made the arrest are entitled to recover the reward offered by the town; leaving all parties, who are more or less remotely engaged in the business, to divide the spoils by .arrangement among themselves.

It would be quite impracticable for the selectmen to inquire into and determine concerning the information, and its effect, which led to the final act of arrest, and to apportion and divide the reward accordingly.

IY. The remaining exceptions of the defendants are to the ruling of the court below : 1st, that a demand upon one of the selectmen was sufficient; and, 2d, that the demand in this case need not be made by or on behalf of all the parties entitled to the reward.

The object of a demand is merely to give the defendants sufficient notice of their liability to pay. The statute creates and imposes the liability. And where the matter lies as much within the cognizance of the one party as the other, notice is not necessary. Watson v. Walker, 23 N. H. 494. But where the act, or the state of facts upon which the liability is to arise, is uncertain in its character, and peculiarly within the knowledge of the plaintiff, so that the defendants cannot learn the facts by the exercise of reasonable diligence, they must have notice before suit. Hicks v. Burns, 38 N. H. 151. It may well be questioned whether in this case any demand was necessary; see Dix v. Flanders, 1 N. H. 246; Watson v. Walker, 23 N. H. 491; Bush v. Critchfield, 4 Ohio 103;— but upon this point the instruction that a demand should be shown, was sufficiently favorable to the defendants, and in compliance with their request.

The liability or debt incurred in this case was the liability or debt of the townnot of the selectmen individually, who are simply the agents of the town for the purpose of offering the reward and paying it “ from the treasury.” It was only necessary that the town, through a proper agent, should have notice of the claim. Bowman v. Wathen, 2 McL. 376. And we think that, for this purpose, any one of the selectmen may be regarded as the agent of the town. The selectmen were not required as a board, ex officio, to determine to whom and how much money should be paid to each or any person claiming the reward. Municipal corporations, or the officers of such, cannot be their own judges of what and to whom they should pay. Janvrin v. Exeter, before cited.

And if the whole object of the demand was satisfied by notice, putting the town upon the exercise of reasonable diligence as to the inquiry concerning the parties entitled to the reward which somebody had earned, an inquiry beyond the jurisdiction of the selectmen to determine judicially, it was clearly unnecessary that the demand should be made by each, or expressly in behalf of each, of the parties engaged in the joint undertaking which entitled them to the reward.

But if there were any informality in the demand, the notice furnished thereby was waived by the defendants.

They declined to pay, not because the demand was not made upon more than one of the selectmen, nor because the demand was not made in behalf of all the plaintiffs, but expressly on the ground that “ there were other parties who claimed the reward,” — Perkins, the selectman, designating Hanson, one Avery, and perhaps Foye. Barker v. Barker, 16 N. H. 337; Pattee v. Gilmore, 18 N. H. 463; Clough v. Ray, 20 N. H. 560; Perley v. B. C. & M. R. R., Belknap December term, 1870.

Upon the whole, we are of the opinion that all the rulings in this case were sufficiently favorable to the defendants, and there must be

Judgment on the verdict.