Josselyn v. Town of Ludlow , 44 Vt. 534 ( 1872 )

The opinion of the court was delivered by

Ross, J.

The article in the warning, under which the vote of March 11, 1865, was passed, only authorized the voting of “ bounties to veterans who have re-enlisted in the field.” Hence the term “ re-enlistcd veteran ” in the vote must be construed as applicable only to that class of re-enlisted veterans who re-enlisted in the field ; by which we mean those soldiers who, at the date of the re-enlistment, were in the service, and had been for a sufficient length of time to be classed as veterans. We do not mean to say that the re-enlistment must, necessarily, have been in the field, and before the enemy. It might have been made while the soldier was at home on a furlough, but must have been made while the soldier was still in the service. The voted bounty is not in terms limited to those soldiers who were citizens of Ludlow, or whose first enlistment was to the credit of Ludlow. We find nothing in the case which establishes that it should be thus limited.

The certificate of the adjutant and inspector general was properly admitted in evidence. The act of 1863 expressly authorizes the use of such certificates in evidence. From that certificate it appears that the intestate’s re-enlistment was into the same company and regiment as his first enlistment, and that his re-enlistment was December 15, 1863, and he was mustered into the service the next day. It also ap°pears that his first enlistment was September 30, 1861, and that he was mustered into the service under this enlistment October 15, 1861. From these facts we think it is sufficiently evident that the intestate was a veteran, re-enlisted in the field to the credit of the defendant, so that he comes within the terms of the vote promising a bounty of five hundred dollars.

The intestate was in the service at the time the defendant voted to pay him the bounty. His credit upon and reduction of the quota of the town, together with his past and accruing services, furnished a good legal consideration for the defendant’s promise to pay him a bounty. Immediately upon the passage of the vote the defendant became obligated to pay the sum voted, and could not discharge the obligation it had thus taken upon itself, by a subsequent vote rescinding the vote by which it had promised to pay the bounty. Gale v. Jamaica, 39 Vt., 610 ; Cox v. Mt. Tabor, 41 Vt., 28 ; Haven v. Ludlow, 41 Vt., 418. In the last named case the court had these same votes of the defendant under consideration; The defendant insists that the suit was prematurely brought, because the plaintiff showed no demand of the bounty before commencing the suit. We do not think any demand necessary. The intestate had a perfected right to the sum voted immediately upon the passage of the vote. It then became as much the duty of the defendant to discharge its obligation to the intestate by the payment of the money, as of the intestate to call upon the defendant and demand the payment of the money. If the defendant would reduce the sum due the intestate below $500, by reason of his having received a town bounty at the time of his first enlistment, it was incumbent on the defendant to have shown that fact. The intestate established a prima facie claim to the sum of $500, when he showed he was one of the class to whom the defendant voted to pay that sum. Inasmuch as no demand is shown, we allow interest only from the commencement of the suit, which for this purpose is the date of the service of the writ. In this case, the trial is said to have been by the court. In the case furnished, we find no evidence of any such trial. It appears to have been made up by the counsel of the parties, by simply stating the evidence on each side, and a pro forma judgment for the defendant by the court. There appears to have been no finding of the facts by the court. Such practice is entirely irregular, and this court was in doubt whether it ought to dispose of the case, as it has done, or to send it back to be completed in the county court. We make these remarks that it may be understood such practice will find no encouragement in this court. .

The pro forma judgment of the county court is reversed, and judgment rendered for the plaintiff for the sum of $500, and iu-erest thereon from the date of the service of the writ, with costs.