J. Brewster vs. H. Hyde, 7 N.H. 206

Richakdson, C. J., delivered the opinion of the court, if is contended in this case that the defendant was not legally chosen surveyor of highways. The objection to his title to the office is, that the justice who issued the warrant for the meeting at which he was chosen surveyor, had, under the circumstances, no authority to issue a warrant for the purpose. If this be so, the defendant fails in an essential point of his defence. , In many cases, it is enough if it appear that an officer is such, de facto, and that he acted under color of an election, or appointment.

But when any One, having seized the goods of another, attempts to justify the seizure, as a public officer, he must show a title to the office strictly legal. The question then, is, whether the justice was, under the circumstances, authorized to call the meeting of the 31st of March, 1830 ? A justice is authorized to issue a warrant for a town meeting, I. On the application of ten freeholders, whenever it has happened that the annual meeting, of any town has not been legally holden. II. On the application of ten freeholders, when a town has never had a legal meeting. III.

On the application of one sixth part of the legal voters, where the selectmen have unreasonably neglected to call a meeting, or to insert particular articles ill the warrant. But in this case, the first meeting in March, 1830, was. for aught that appears, a legal meeting. The circumstance that the original warrant was posted up, instead of a copy, is no legal objection to the meeting. It was, at least, as good a notice as could have been given by posting up a copy. 5 N. H. R. 542, Eaton vs. Miner.

It does not appear that ten or more freeholders ever signified their desire in writing to the selectmen to have a meeting, or to have any particular

article inserted in the war-* rant. Nor does it appear that one sixth part ■ of the legal voters made’application to the justice. No occasion appears, then, to have occurred in the town which gave the justice authority to issue a warrant;'for a town meeting, and the meeting cannot be considered as legally holden. The defendant has therefore failed to show a legal title to the office of surveyor of highways, which is essential to enable him to justify the seizure of the plaintiff’s goods, and there must be Judgment for the plaintiff.