Waiver of notice — Incompatibility of offices — Dismemberment of school districts. 1. If there was any defect in the notice, it was waived. The record, which is made a part of the case, recites that school district No. 6 appeared by its prudential committee and clerk. It also recites that several of its voters were present, and that they were heard. It does not appear that any objection was taken to any insufficiency in the notice that was given. The plaintiffs could, if they chose, have insisted *Page 455 upon such notice being given as the law prescribes — probably such as is provided in ch. 233, Gen. Stats.; but want of notice, or as insufficient notice, is cured by an appearance by the party entitled to it, no objection on that account being seasonably taken. This principle is too familiar to be questioned. Petition of Gilford, 25 N.H. 124, Goodwin v. Milton, ib. 458. The objection that the notice was insufficient (and whether it was insufficient it is not necessary to inquire) must be overruled.
2. It is possible that there might be such a state of things that it would be inconsistent in one holding the office of selectman to discharge at the same time the duties of school committee; but ordinarily this would not be so, and I do not think the two offices were incompatible in this case. By the constitution of this state, articles 93-95, persons holding certain offices are prohibited from holding other offices; but the office of selectman is not included in those provisions. No statute prohibits the same person from holding both offices at the same time. No sufficient reason has been suggested, and none occurs to me, why the two offices may not be held by the same person. Ordinarily there is no conflict in the respective duties belonging to these two offices. If, however, there is any doubt in this case, it is open to the inquiry whether the exception should not have been taken at the hearing, and must not now be regarded as waived, and it is quite probable that the action of Cilley and John F. Emery, constituting a majority of the selectmen, was sufficient — Gen. Stats., ch. 1, sec. 14 — in case E. G. Emery is to be considered as disqualified by reason of his acting at the same time in the office of school committee.
3. The validity of the action of this tribunal, in annexing the territory of district No. 6 to the other three districts, does not depend upon the apportionment of the debts and property. If there be any defect in the apportionment that was made, it can be remedied upon proper proceedings. The statute does not require that severing territory from or annexing territory to any district should be done upon the same petition, or at the same time and place, as the apportionment of the debts and assets of the districts affected by such action is made. By Gen. Stats., ch. 78, sec. 9, the school committee and selectmen, upon petition, "may change the lines of adjoining districts, and may constitute new districts, or unite the whole or part of any district to an adjoining district." It will be noticed that this is required to be done upon petition. By the act of 1868, ch. 1, sec. 25, "the school committee" "and selectmen, by whom any district or districts in the same or in adjoining towns are divided or united, or the limits thereof in any way changed, shall make an equitable apportionment of the property and debts of the districts affected by such change, and find the balance, if any, equitably due from either of said districts to any of said districts, and order the payment of such balance within a time to be by them limited." This section took the place of sec. 10, ch. 78, Gen. Stats., which required such apportionment to be made by "the school committee, upon petition." *Page 456 The statute as amended does not require the apportionment to be made "upon petition;" and it is quite probable that the selectmen and school committee might proceed, without a petition therefor, under sec. 25 of ch. 1 of the act of 1868, to make such apportionment at the same time the boundaries of any district are changed by them upon petition under ch. 78, sec. 9, of Gen. Stats. But however that may be, I find nothing in the statutes that makes the validity of their action in changing such boundaries depend upon a simultaneous apportionment of the property and debts of such districts.
4. The amendment, adding a new count de bonis asportatis, was properly received. It clearly comes within the liberal provisions of our statutes in regard to amendments. The form of the action is not changed, nor is the identity of the cause of action destroyed. Hurd v. Chesley, ante, 21.