Janvrin v. Town of Exeter.

and there it is well settled that if, in consequence of such offer, the offender be apprehended and secured according to the terms of the offer, and within a reasonable time, the person doing it may, in an action of assumpsit, recover the reward.

This, put upon the ground that although such an offer is a mere proposal, or a conditional promise, and may be revoked at pleasure, yet if any one shall, before a revocation, perform the service, relying apon such offer, it becomes a legal and binding contract. Symmes v. Frazier, 6 Mass. 344; and the same doctrine is held in Morse v. Bellows, 7 N. H. 549, where the authorities were carefully considred, and it was laid down that if one, relying upon a promised reward for the apprehension of a culprit, performs the service, it is a good consideration for the previous promise, which thereupon becomes binding upon the promisor. So is Wentworth v. Day, 3 Met. 352.

The same doctrine is applied to similar offers by towns or cities. Freeman v. City of Boston, 5 Met. 56; Loring et al. v. City of Bosten, 7 id. 409; Cranshaw v. City of Roxbury, 7 Gray, 374. The Fame doctrine is applied in the case of bounties offered by towns or ties to persons who may enlist into the military service of the United States. Crowell v. Hopkinton, 45 N. H. 9.

It is urged that the case before us differs from those in Massachusetts, upon the ground that here the authority was conferred by statute. We do not, however, perceive that this can affect the result. The statute clearly confers authority to offer rewards in such cases, and we can perceive no ground for any distinction. between a power acquired by express enactment, and that which is incident to the general powers conferred by law upon towns, unless there be in the statute some limitation or qualification of that power.

The statute here (Comp. Stats. chap. 236) authorizes "the mayer and city council of any city, and the selectmen of any town or place, whenever in their opinion the public good may require it, to offer and pay from the treasury of such city, town or place, a suitable reward, not exceeding $300 in any one case, to any person who shall, in consequence of such offer, apprehend and secure any person or persons charged with having committed any capital or other high crime."

In England, to encourage the apprehension and conviction of offer lers, rewards were allowed to the amount of forty pounds by

Janvrin v. Town of Exeter.

sundry acts of parliament, some of which were as early, at least, as the fourth of William and Mary, and in some cases a portion of such reward was to be paid by the hundred indemnified by the apprehension of the offender. 4 Blk. Com. 295; 2 Burn's Justice, 373. The same general policy has dictated our own law, and the laws of most of the American states, although here it has been thought better to provide for offering a reward suited to each particular case as it arises rather than to fix it by a permanent law at a uniform amount in the same class of offenses.

It is evident, however, that the policy of offering rewards by the public in some form, either by the state or a municipality, for the arrest and conviction of offenders, has long been well established; and it has ever been held that it may be done by towns and cities without being specially authorized by statute. Cranshaw v. Oity of Roxbury, 7 Gray, 374, before cited.

In England, in addition to the permanent allowance by law, it was common for parties interested to offer rewards in particular cases, and the authorities are numerous where such offers have been enforced. Ch. on Con. (9th Am. ed.), 477, note a, and many cases cited. In Falli v. Barber, 1 M. & S. 108, the policy of authorizing such rewards is ably vindicated.

Of course, the difficulties suggested by defendant's counsel in determining who among many claimants was entitled to the reward, must have been encountered. Among other cases upon that subject is that of Lancaster v. Walsh, 4 M. & W. 16, where a reward was offered to whoever should give information by which a crime could be traced and the offender convieted; and it was decided that he only who gave the first information was entitled to the reward; the court saying that, after that, a person could not be said to be informed by another telling the same thing, and holding only one reward was offered. PARKE, B., says, that if two jointly give the information, both must join in a suit for the reward.

It is obvious that the difficulties to be encountered in determining who is entitled to the reward are the same in the case of an offer by a standing law, by a private individual and by a municipal corporation; no difference has been suggested, and none can be perceived; and, as the policy in respect to rewards offered by law and private persons has long been well established, we think the authority conferred upon towns and cities should be construed, if it may be, in accordance with the well-settled policy upon that subject, and

Janvrin v. Town of Exeter.

we are unable to see any grounds for a strict construction of that authority, or for making municipal corporations, any more than individuals, their own judges of what, and to whom, they should pay. Indeed, it is fair to presume that, in authorizing towns to offer rewards, it was intended to put them upon the same footing as private individuals.

The case of bounties, as before suggested, stands upon much the same ground. By the statute, towns are empowered to offer and pay them to encourage enlistments; and here to offer rewards to encourage the apprehension and conviction of offenders. The policy of such laws is equally clear and well established in the two cases, and in respect to the former it is settled that the payment of the bounty may be enforced by suit.

It is to be observed, also, that courts are always reluctant to give a construction to a contract or a law that shall constitute a person a judge in his own case; and this reluctance has been of late largely increased, so much so, indeed, that it can hardly be said that such power of deciding one's own cause can be conferred at all. Smith v. B. C. & M. Railroad, 36 N. H. 458.

Unless, then, this power is expressly given to the city or town authorities, or is clearly implied from the language of the statute, it would be contrary to all rules of construction, and to precedent also, to give that effect to the law in question.

In the case before us, a reward was promised for the apprehension and conviction of the offenders, and the selectmen had authority to do it. If the service was renderd, relying upon this promise, the payment of the reward becomes a duty, which, as in the case of a bounty to recruits, may properly be enforced by suit. The promise is in behalf of the town. It is made by the selectmen in their official capacity, and substantially in the form adopted by the mayor of the city of Roxbury, as set out in Cranshaw v. Roxbury, before cited, and it was there held, that, as the mayor professed to act for the city, having signed the offer officially, and his authority being afterward confirmed, the city was bound by the promise.

Nor is there, we apprehend, any doubt that the selectmen had power to make such an offer in behalf of the town of Exeter. The statute, to be sure, empowers the mayor and city council, or selectmer, to offer and pay, but it is out of the money of the city or town, and it must, we think, be regarded as an authority to make such

Bowker v. Smith.

offer in their official capacity, and in behalf of the cities or towns, and not on their own account.

Upon these views the demurrer must be overruled.

Upon the other point informally reserved, we are of the opinion that all the parties who joined in performing the service for which the suit is brought must join as plaintiffs. It is obvious that two or more persons may join in detecting and apprehending an offender, and if they do so, they are jointly entitled to the reward, and should join in the suit. It is like other cases of joint service, and is governed by the same rules. If, indeed, sundry persons separately undertake to secure a culprit, and one without concert with others succeeds in apprehending him, he alone is entitled to the reward, and alone should sue. There may be cases where it might be difficult to determine whether certain persons did act in concert or not, but this cannot affect the rule that those who have jointly performed the service should join in the suit. If it were otherwise it would be an exception to the rules of pleading for which we find no precedent whatever, and the case of Lancaster v. Walsh, 4 M. & W. 16, before cited, is in point.

Exceptions sustained.

BowKER V. SMITH.

(48 N. H. 111.)

Partnership- When creditors of individual partner cannot defeat title acquired to his lands by partnership creditors.

Where the creditors of a partnership have levied their execution on lands belonging to one of the partners, and their title has become absolute by lapse of the time prescribed by statute, a creditor of the individual partner cannot defeat their title by levying his attachment or execution on the same lands.

THIS was an action in the form of a writ of entry to recover possession of lands. The facts are sufficiently stated in the opinion.

Vose & Cushing, for plaintiff.

Wheeler & Faulkner, for defendant.

Bowker v. Smith.

PERLEY, C. J. The Cheshire Bank, creditors of C. Tolman & Co., levied their execution on land of Handy, one of the partners, on the 14th of September, 1858. The plaintiff, for a debt due from Handy alone, attached the same land in mesne process on the 12th of October, 1859, after the title of the bank under their levy had become absolute as against Handy by the lapse of a year from the time of their levy. The defendant has the title of the bank; and the main question would seem to be whether, after the creditors of a partnership have levied their execution on land belonging to one of the partners, and their title as to him has become complete by the lapse of a year, a creditor of the individual partner may take the same land for his debt and defeat the prior title derived under the levy for the partnership debt. There is no suggestion of any fraud in this case. If this may be done after one year, I see no legal reason why it may not be done at any time short of twenty years. Several serious inconveniences would follow from allowing the preference of an individual creditor to the application of his debtor's property to be asserted after the same property had been finally and absolutely appropriated to the payment of a partnership debt under legal process.

The levy of the execution is by law made the public evidence of title. It is required to be returned into court, and also to be recorded in the registry of deeds, which the law provides for giving publicity to all titles in land. The execution creditor, after the lapse of one year from the time of the levy, would appear by the record to have a complete title under the law which provides for the application of a debtor's property to the payment of his debts yet he, and purchasers under him, if the claim here set up were admitted, would be liable to have their title drawn in question until the claim was barred by the general statute of limitations.

Then, again, if the claim to this preference over the property of the individual partner could be made at an indefinite time after it had been levied on for a debt of the firm, it would greatly embarrass the settlement of the partnership accounts; for the partnership accounts could not be finally adjusted till it was certainly known that there was no outstanding demand against the partner, that might be levied on the same land which had been taken for the partnership debt. Until the title under the levy for the partnership debt was defeated by a levy for the private debt of the partner, it would appear that he had paid the partnership debt by the levy