Fogg v. Dummer

By Gen. St., c. 37, s. 4, any town may choose one or more agents; and if such officers are not chosen, the selectmen shall discharge the duties and have all the powers of those officers. By the act of 1791 "for regulating towns and the choice of town officers," it was provided that towns might choose an agent or agents, attorney or attorneys, for prosecuting or defending any suit for or against the town. This provision was in force until the adoption of the Revised Statutes in 1842, when it was repealed, and the provision for the choice of "one or more agents," as the law now is, was made in place of it.

The powers and duties of these officers named "agents," without other designation, definition, or prescription of authority, must be understood to include, at least, all those powers and duties which had been given by the former statute, and used in practice under that statute for more than fifty years. Their duty and authority being well enough understood, they were, in the revision of the statutes, called agents without definition or qualification.

The defendant town having failed to choose an agent or agents, the selectmen had all the powers and duties of agents, and were authorized to manage and conduct the suits for and against the town. In the exercise of this authority they could make admissions which would be competent evidence against the town. Gray v. Rollinsford, 58 N.H. 253. It was their duty, as agents, to investigate the plaintiff's claim, and, in the absence of special instructions by the town, they had the power to submit the merits of the claim to arbitration. Eastman v. Burleigh, 2 N.H. 484, 487; Buckland v. Conway, 16 Mass. 396; Holker v. Parker, 7 Cranch 449; Filmer v. Delber, 3 Taunt. 486; Caldwell on Arb. 29, 30. The evidence offered by the plaintiff was sufficient to support his action.

Case discharged.

DOE, C. J., did not sit.