WINDSOR, February, 1842.

Danforth

V.

Grant.

A. Aikens and Edwin Hutchinson, for defendant.

1. The plaintiff was not entitled, by law, to the charge requested. It is an assumpsion, that a post master is, by law, a warantor, prima facie, that every letter, entered in his office, shall arrive at the place of its ultimate destination, unless he can trace its non-arrival, or non-delivery there, to the fault of some other person. It assumes that every post master, in whose office a letter is deposited to be sent by mail, in case of its non-delivery at the place of destination, is guilty of a crime (the stealing of the letter or package,) and leaves him to the mercy of accident' to prove his innocence if he can. This is contrary to the first principles of natural justice and of law, which are, that every man shall be holden innocent till he is proved guilty, and that a public officer is presumed to have done his duty, till the contrary is made to appear.

And the form of the action makes no difference, for the assumpsit, in such case, can be founded upon nothing other than an implication that the postmaster has criminally purloined the money sought to be recovered, from the letter in which it was inclosed; the plaintiff assuming, as fact, that the crime has been committed, and waiving the tort.

Precedents and authorities are unnecessary to demolish an assumption so impracticable and absurd.

2. The charge of the judge to the jury gives the true rule of law.

From the tendency of the various proofs on the trial, the jury might well have found that the letter was delivered, or that it was never delivered, to the defendant, or at his office; or, Ir delivered, that it was retained by him, or, that it was mailed to Barnard and there lost, or that it was accidentally misdirected or deposited in a wrong mail, and so lost ;-and so the money never coming to his hands-according to the preponderance of the proofs.

1. They did not find that the letter was received and retained by the defendant, for, if they had so found, their verdict, under the charge, would have been for the plaintiff.

2. They must have found, therefore, that the letter was never delivered to the defendant or at his office-or, that it was mailed to Barnard and there lost-or, that it was missent to some other office, or by a wrong mail, and so lost

in either of which possible events, the money never came to WINDSOR. the hands or use of the defendant.

And the plaintiff was not entitled, to recover, therefore, in this form of action, upon any possible finding of the jury, upon the preponderance of the proof submitted to them.

The charge of the judge, was, therefore, in strict accordance with the well settled principles of the law. Chitty on Con. 476, et seq. 5 Greenl. R. 319.

3. If the jury could have believed, from the facts found, that the letter was misdirected, or missent through the culpable negligence, or carelessness, of the defendant-the charge, in this action, could not legally have been other than what it was.

If such were the facts, the plaintiff's remedy was by action on the case to recover his consequential damages-in which the issue would have been, not upon a promise of the defendant to pay money; but upon his guilt or innocence of a charge of neglect of official duty resulting in an injury to the plaintiff.

When the plaintiff shall have brought such a case to the consideration of the court by his plea and sustained it by his proofs, he may ask for a charge applicable to it, but not till then; for, the charge, to be legal, must be one which will enable and require of the jury to return a verdict not only secundum probata, but, secundum allegata also. Ainslie v. Wilson, 7 Cowen's R. 662.

The opinion of the court was delivered by

Vide

REDFIELD, J.-Although it be true that the defendant, as postmaster at Woodstock, is liable, like other bailees for hire, for any loss, happening through his want of reasonable care and diligence, or in other words, for ordinary neglect, no recovery for any neglect, however gross, can be had in this form of action. He is here sued for money had and received. He must therefore have appropriated the money in some way, as men use their own money. It is not enough, in this form of action, that he put the letter carelessly into the wrong mail, or left it exposed in his office, where some one purloined it, without his acquiesence. For if the letter were, through his neglect, lost or destroyed, or in any other

February, 1842.

Danforth

V.

Grant.

1

WINDSOR

February,

1842.

Blodgett

v.

Town of Royalton.

way, failed of reaching its proper destination, defendant would only be liable to a special action on the case for such neglect.

to recover.

We think, therefore, that the charge of the court below, to the jury, was correct. The jury were told,' that proving, merely, that the letter containing the money was delivered 'to the defendant, was not sufficient to entitle the plaintiff It must appear that the money actually came 'to his use.' This charge is further explained, but not substantially varied. It is not to be inferred, from the charge, that the money coming to defendants use, necessarily implies, some beneficial use, but only that it was put to his use, as if it were his own. If he gave it away, or destroyed it, or broke open the letter and put the money into his pocket book, he would be liable, equally as if he paid it out for necessaries, or in payment of a just debt, but not merely from having missent the letter, or carelessly failed to send it at all. The charge was explicit, and liable to no misconstruction.

Judgment affirmed.

SAMUEL BLODGET v. TOWN OF ROYALTON.

A certificate of the selectmen, lodged with the town clerk for record, is the legitimate evidence that a road has been opened and devoted to public use.

Towns are liable for damages occasioned by the insufficiency of any highway which they adopt, either by leaving it open for travel and shutting up other highways, or by setting it in the rate bill of the highway surveyor.

An indictment against a town for not repairing a highway, and a conviction thereon, is evidence that such highway has been adopted by the town. If such highway is insufficient, the town is responsible to individuals who may thereby sustain damages.

What constitutes an opening of a highway is a question of law, and it is error in the court to leave that question to the jury to determine, without instructing them as to the law.

The consent of the selectmen that a person may travel on any road, or their knowledge that the traveller supposes it to be a public highway, does not render a town liable for injuries happening thereon, unless they have done some act recognizing it as a public highway.

TRESPASS on the case, under the statute, to recover dam

ages for injuries to the plaintiff's horses and carriages, which happened in consequence of the insufficiency or want of repair of a certain road in Royalton. Plea, not guilty, and trial by jury.

On the trial in the county court, the plaintiff, to show that the road in question was an open, public highway which the town of Royalton were bound to keep in repair, and that he had sustained damages from its being out of repair, introduced the following testimony:

1. A copy of a record of the supreme court in Orange county, showing a petition for a road, the appointment of commissioners to lay such road, the laying of the road by such commissioners, &c., but this copy was not certified to be a true copy of record by the clerk of said court, nor by any judge thereof, but was certified by the clerk of the county court, who, by statute, is also clerk of the supreme

court.

2. Copies of the records of town meetings of the town of Royalton, legally warned, held on the 17th of May, 1836, and on the 9th day of July, 1836, relating to said road, showing that the town appointed a committee to receive bids or proposals for making the road, and to contract therefor and to accept the road if made agreeably to such contracts as they might make; that, after bids were made for making. the road, the town voted to accept such bids.

3. Parol testimony, tending to show that the town had repaired the road in 1838 and 1839; that, in the fall of 1837, after the road had been accepted by the committee appointed by the town, the fences were removed so that the road could be used as a public road, and that it had been so used and travelled upon ever since November, 1837; that, in May, 1838, an old road, for which the road in question was substituted, was fenced up; but it did not appear to have been done by any authorized agent of the town, nor that such agent opened the new road.

4. Parol testimony tending to show that, at the May term of Windsor county court, 1838, an indictment was found against the town of Royalton, relating to the road in question, and a fine imposed by the court, and an agent appointed by said court to expend the fine, who afterwards did expend it in repairing said road. This testimony was admitted after

WINDSOR,

February, 1842.

Blodgett

v.

Town of Royalton.

1842.

Blodgett

0.

WINDSOR. proof had been introduced showing that search had been February, made in the office of the clerk of said county court for said indictment and the records and proceedings thereon, and that the indictment could not be found, nor any record thereof, excepting the clerk's minutes on the docket of May term, 1838, showing the entry of an indictment, a continuance, and the assessment of a fine of $200, at the November term, 1838, and the appointment of an agent to expend the fine upon said road.

Town of Royalton.

5. Parol testimony, tending to show that the committee, appointed by the town to contract for making said road and to accept it, when completed, procured the road to be made and accepted it, in November, 1837, soon after its completion, and that the plaintiff sustained damages from its insufficiency and want of repair in December, 1837, and in the spring of 1838.

It was admitted that no certificate, from the selectmen, of the opening of said road was ever left in the town clerk's office, in Royalton, for record.

The defendants objected to all the testimony thus offered, but the county court overruled the objections, admitted the testimony, and instructed the jury that if they found from 'the evidence that the plaintiff had suffered damage as alleged in his declaration, in consequence of the insufficiency 'or want of repair of said road, after it had in fact been 'opened and travelled as a public highway, with the knowl'edge and consent of the selectmen of Royalton, they were ' at liberty to find for the plaintiff to recover such sum as would be sufficient to make good the damage thus sustain'ed.' The jury returned a verdict for the plaintiff, and the defendants excepted.

T. Hutchinson, for defendants.

1. The admission of the copy of the record of the proceedings in the supreme court in Orange county, the copy not being certified as the law requires, was clearly erroneous.

2. No certificate from the selectmen of the opening of the road was ever left for record in the town clerk's office in Royalton.

Until this was done, though the town might be liable for not making and opening the road by the time required by