Davis v. Town of St. Albans , 42 Vt. 585 ( 1870 )

The opinion of the court was delivered by

Barrett, J.

The special count is on the vote of December 28,1863, to pay $300 bounty “ to volunteers for the purpose of filling the call for forty-six men required by the government for 300,000.” The selectmen by their own exertions procured said forty-six men, the last twelve of whom were enlisted and sent forward from St. Albans on the 4th, and were mustered in at Brattleboro on the 5th of January under the personal superintendence of one of the selectmen. The plaintiff did not enlist on the application of the selectmen, nor had he made himself enlisted to be credited to the town on that quota until the act of being mustered in on the 5th of January. In order to maintain this suit on that-count, he must come within the scope and operation of that vote. He was not entitled to count as one of said forty-six men unless he was mustered in to the credit of the town before that number had been otherwise filled.

No doubt he was properly, in fact, credited to. the town. But that is not enough. He must have been properly creditable as one of the forty-six, in order to entitle him to recover. Whether he was so or not depends on the question whether he was mustered in before that forty-six men had been supplied by the direct exertions of the selectmen. The evidence tended strongly to show that the twelve men were mustered in at Brattleboro, at an earlier hour, of. the 5th of January, than the plaintiff was mustered in at St. Albans. As counsel did not wish to submit any question to the jury, it was for the court to render judgment upon such a state of facts as they regarded proved by the evidence. The judgment that was rendered imports either that the court found affirmatively that ■ the twelve men were mustered in at Brattleboro before the plaintiff at St. Albans, or that the court failed to find that the plaintiff was mustered in seasonably to make him one of the forty-six,— either of which might warrantably have been the case upon the evidence; and in either event the plaintiff would have failed to make out his right to that bounty. This being so, he can not now be heard to say either that the court unwarrantably found the fact against him, or failed unwarrantably to find it in his favor.

As this case stands upon its peculiar facts, with reference to the familiar principles of law that govern the respective rights and liabilities of the parties, it can be of no service to discuss it under any wider view. The plaintiff does not show himself to come within the vote under which he claims.

As to the point made under the general counts, it is sufficient to say that no ease has yet gone so far as professedly to hold that any thing short of an express undertaking will make the town legally bound to pay a bounty to a soldier.

The judgment of the county court is affirmed.