The Union and journal., 1869-10-01
SUPREME JUDICIAL COUR I.
York County, Sept Term, 1860,
ut.Alfred.
DARnows, j., rREHDISG.

No. '6l-Asron u. Chapman '. Inhabitants
Of Limerick.
This is an action TO recover back money paid
10 the treasurer and collector Of Limerick as q
tax assessed to refund TO certain individuals
monies advanced by them upon q voluntary
subscription for the purpose Of paying bounties
to persons who should enlist upon the quota of
the town that we might "avoid the draft." The
plaintiff and many others, deeminy this action
Of the town illegal, determined to resist II and
brought this as q test case. The defendants
contend that the healing acts have cured any
defects Of form Of procedure and authorized the
course pursued by the town; and also rely upon
. special act validating whatever was done at
the town meeting at which the vote was passed
under which this tax was laid. Plaintiffs say
the action Of the town was void because the
meeting was not legally called, nor holden; that
the object was one for which the town could not
raise money; and that the defects were not cured
by any subsequent legislation. This suit was
brought at the September term, 1865, and the
testimony taken out ut the September term,
1866, and the case then submitted to the dec-
siop Of the judges upon the facts stated. One
defect relied upon by plaintiff was that the con-
stables return upon the warrant calling the
town meeting was not signed by him, but that
one Libby affixed the officers name thereto at
his request. The Court are unanimous in say
ing this was unauthorized by law, but as Il does
not 70 10 the merits Of the cause, they say the
constable may amend by now writing his own
name to the return. and the case is remanded to
jury for the purpose Of q new hearing which
! is had at this term Of Court. The opinion Of
the Court is drawn by Judge Kent, and as il
possessed some points Of general interest to all
citizens, and especially al town officers, we will
give II in full.
KESr. J. 'Thls case Is submitted to the Court
with Jury powers. Tho whole evidence Is reported.
The action Is instituted to recover hack the amount
Of tax which the plaintiff alleges was Illegally
been made 10 the legality Of the town meeting Mt
which tho tax voted. The first objection 10 that
the moderator was not duly sworn. This is required
by ch J. SIS, Revised Statutes. The record % silent
upon the subject The defendants offer certain parol
evidence to prove that he was in faet sworn "by
justice Of the peace or by the person presiding at
eided in several cases in this state that in the alb
sencc OF record eyidcuce the fact the required oath
Was legally administered may be proved by parol,
kellaI '. Savage, " Ne, 4ii-lIsn v. Cushing,, 2
question here Is whether the required net has been
sufficiently established by the parol proof II Is 10
be considered that when the law requires q certain
thing 20 be done which, frOm its nature III not by
the positivcSequircmen OF the Statutes should 10
recorded and duly certified tho permission 70 waive
the production Of tho record and 10 allow parol
proof should he - guarded that nothing short Of
prnsry clear and distinct and absolute evidence
should bc received rs sufficient substitute for tho
record. The evidence should be OF distinct and
positive character, and not inferential or only q
strong belief andconyiction in the mind Of the wit
ness that the oath WAS administered, from the na
turc OF the case that Il must have been.
Tho only evidence In this upon this point Is
the testimony Of The moderator himself fe says,
81 tiiak was qualified moderator by the prcsd.
ing officer Of the meeting-the man in the desk-thc
chairman OF the selectmeo, A. A. Libby. lam very
positive was sworn. The Clerk was not present.
u. Z. Eastman, clerk pro ten, was sworn BY Abner
Burbank, q Justice Of the Peace" On cross exam-
ination he said. "Am very confident was sworn by
A. A. Libby, am rs confident that WAS sworn by
A A. Libby as I am that was sworn"
The next heat evidence 10 the record In the town
hook would be the certificate Of the magistrate who
administered the oath. Perhaps the next 10 that
would be the testimony OF such magistrate TO the
hct.
Tho person BY whom II l. believed by the witness
that The oath was administered 10 not called 10 tes
tify. hut n has been decided that the iact may be
proved by the testimony of tue party who took the