The plaintiffs claim that the defendant — Danforth — being *Page 278 one of the selectmen of the town, was bound to see that, as collector, he had a valid list and warrant, and is therefore estopped to deny it.
No legal warrant was directed to him under the hands of the selectmen, and committed to him with the list, as required by Gen. Stats., ch. 53, sec. 8. Consequently he had no power to enforce the collection of the list, nor could he have justified, if sued in trespass for distraining property, or for making an arrest for non-payment of the taxes assessed. Those who paid must have done so voluntarily. The defendant does not refuse to account for all that he has collected; he resists only the recovery of the amount uncollected ($141.40).
The plaintiffs concede that if some person other than one of the selectmen had been appointed collector, he would not have been estopped to show that legal warrant and list had been committed to him. How does Danforth, because he was one of the selectmen, stand differently? The elements essential to an estoppel by conduct as laid down in Stevens v. Dennett, 51 N.H. 333, 334, are wanting. He concealed no material facts, for he had no knowledge of any facts that were not equally known by the plaintiffs, or were not equally open to them to learn. He did not join in his own appointment as collector, and his acceptance could not have misled them. He was no more bound to know that he had no legal warrant than they were. Both parties acted upon the supposition that a legal list and warrant were committed to him; but, with a reasonable use of the means within their reach, the plaintiffs might have ascertained their mistake. A party setting up an estoppel is bound to the exercise of good faith and due diligence to ascertain the truth. Morse v. Brown, 47 N.H. 499. In the appointment of Danforth he cannot in any sense be said to have represented the town. That was done by his two associates exclusively. He is not estopped to deny that he never had any legal list and warrant, and, as no such list and warrant were ever committed to him, he cannot be charged beyond the amount of taxes collected by him.
As to the other branch of this case, I am satisfied the defendant had no authority to issue the orders, and be cannot therefore be allowed to set off the amount he paid to the holders of them, against the amount collected by him for taxes. There never was any legal vote of the town that authorized the defendant to issue said orders. The town voted, July 5, 1864, "to pay to men who have been or shall hereafter be drafted from this town, or to the substitutes for such conscripts, the sum of $100." This vote was broad enough to include R. W. Danforth and Sargent, who had at some time previous to that date (but when, does not appear) been drafted from Pittsburg into the military service of the United states, and in order to free themselves had paid $300 each, commutation money. But the town at that time had no authority to pass such a vote, and it was consequently wholly void. In 1869 the legislature (ch. 126, 1 Sess. Laws) empowered the town "to ratify and confirm all votes and acts of said town passed and performed at a legal meeting of the inhabitants of said town, on the fifth *Page 279 day of July, 1864." Under the authority of this statute a meeting of the legal voters was held January 26, 1870, at which it was voted "to ratify the vote, or article, of the meeting in said town, of July 5, 1864, to pay $100 to men who were drafted from May 1 to July 1, 1864, and furnished substitutes to apply on said town's quota." The only vote of July 5, 1864, to which this vote could possibly refer, is the one given above. The fourth article in the warrant for the meeting of July 5, 1864, the meeting had voted "to dispense with." In order, therefore, to entitle Danforth and Sargent to claim the benefit of the vote of January 26, 1870, they must show two things: (1) that they were drafted between May 1 and July 1, 1864; and (2) that they furnished substitutes, neither of which facts are shown by the case before us. It does appear that they were drafted prior to July 5, 1864, but how long before does not appear; and there is no presumption that it was between those dates. It also appears that they each paid $300 commutation money; but that is altogether a different thing from furnishing substitutes. It is clear, then, that they were not embraced within the terms of the vote of January 26, 1870. The payment, therefore, to them by the defendant of the orders drawn under said vote was unauthorized by its terms, and the defendant cannot set off the amount so paid against the money collected by him upon the tax list.
According to the provisions of the case, the plaintiffs are entitled to judgment for $451.95, with interest from the close of the August term, 1874, of the circuit court.
Judgment accordingly.