
    Adolphus Hale & others vs. Henry W. Cushman & others.
    A town passed a vote to refund to its selectmen the expense they might incur in de-fence of s suit brought against them for a violation of their official duty respecting elections, uid directed its treasurer to pay money to the counsel employed by the selectmen to defend such suit: A minority of the voters thereupon filed a bill in equity, praying that the officers of the town might be restrained, by injunction, from carrying such vote and direction into effect. Held, that the equity jurisdiction of the court did not extend to this case.
    Tms was a bill in equity, in which the plaintiffs, sixty seven in number, alleged that they were legal voters in the town oí Bemardston, and liable to pay more than one half of all the taxes to be assessed upon the inhabitants of said town; that, at the annual town meeting in said town, held on the second Tuesday of November 1842, for the election of governor, &c., Israel F. Hale, claiming to be a legal voter in said town, offered and tendered his vote,, at said election, which vote was refused by two (a majority) of the selectmen of said town ; that, at a *egal meeting of the qualified voters of said town, held in February 1843, for the election of a representative to the congress of the United States, the said Israel F. Hale again offered and tendered his vote, as aforesaid, which vote was again refused by said selectmen ; that said Hale was qualified by law to vote at said meetings, and that the same two (a majority) of the said selectmen illegally, and without any sufficient and justifiable cause, refused his vote ; that, in March 1843, said Hale sued out a writ against said selectmen for their refusal to receive his vote at the meetings aforesaid, which writ was returnable at the court of common pleas for the county of Franklin; that said two selectmen, combining and confeder ating with the other selectman of said town, and with Henry W. Cushman, clerk and treasurer of said town, and intending (among other things) to indemnify said selectmen from the consequences of their misconduct, if said action should be sustained, by illegally imposing upon the plaintiffs in this bill the charge of contributing to the defraying of all damages and expenses which it would be right and legal for said selectmen to bear, did, at said Bernardston, on the 24th of April 1843, cause and procure a meeting of the inhabitants of said town to be called, by virtue of a warrant containing the following (among other) articles: “ To see if the town will appoint an agent or agents to defend the lawsuit against the selectmen, commenced in the name of Israel F. Hale, and appropriate any money in the treasury for the payment of the expenses of said suit: ” “ To pass any other votes, in relation to the aforesaid suit in the name of Israel F. Hale, they may think proper when convened:” That the inhabitants of sair» town assembled on the 3d of May 1843, being the time specified in said warrant; and that said Henry W. Cushman, in pursuance of the combination and conspiracy aforesaid, did then and there move for the passage of a certain preamble and votes, [all of which were set forth in the bill,] and that the following votes, among others, were then and there passed: “ Voted, that it is our deliberate opinion, in town meeting assembled, that if the selectmen whom we have chosen, and in the performance of their official duties, shall suffer any cost or expense on account of said suit, that it will be the duty of the town to refund to said selectmen the amount so paid by them, from any money in the treasury, not otherwise appropriated, as this and other towns have done in similar cases: ” “ Voted, that the treasurer of this town be directed to pay the sum of $ 10 to Grennell & Aiken, and also $ 10 to R. E. & H. G. Newcomb, for expenses already incurred in the defence of the suit of Israel F. Hale against the selectmen of this town: ” That said votes were passed by a majority of the inhabitants of said town, the plaintiffs all voting against the adoption of the same; and that, on the next day after the said votes, the said Cush-man proceeded to pay the said sums in said last vote mentioned, and therein directed.
    The bill further averred, that the plaintiffs believed that said selectmen and said Cushman, unless prevented by this court, would proceed, in pursuance of their said combination and confederacy, to withdraw from the treasury of said town, amounts of money sufficient to indemnify said selectmen for all damages and expenses which they might be compelled to pay in consequence of their misfeasance in refusing, as aforesaid, the vote of said Hale, and thus compel the persons, who have protested against the wrong, to share the punishment of those who inflicted it. Wherefore the plaintiffs prayed that said selectmen and said Cushman might make true answers to the matters aforesaid, and that said Cushman might be decreed to replace in the treasury of said town the amount of the money by him withdrawn as aforesaid, and that he might be restrained, by the order and injunction of the court, from paying any other money, fi jm the said treasury, towards defraying the expenses of said suit, or any damages arising or to arise to said selectmen therefrom, and also that said selectmen be restrained, by an order and injunction of the court, from drawing any order or orders on said Cushman, treasurer as aforesaid, for the payment of expenses or damages as aforesaid. Therp was also a prayer for such other and further relief as the cir cumstances of the case might seem to the court to require.
    The defendants demurred to the bill.
    
      Grennett & Hallett, in support of the demurrer.
    Towns may rightfully vote to pay money in aid of the defence of a suit, brought against their selectmen. Bancroft v. Inhabitants oj Lynnfield, 18 Pick. 566. Nelson v. Inhabitants of Milford, 7 Pick. 18. But if this were otherwise, yet the court has no jurisdiction of the matter of this bill. Even if the votes set forth in the bill were illegal, yet such votes do not show that the court has jurisdiction in equity. There is no trust in the case, and none is set forth. Town officers, as such, are not trustees, and the equity jurisdiction of the court extends to the enforcing and regulating, not of official duties, but of trusts. Rev. Sts. c. 81, <§>8, clause 2d. See Stone v. Hobart, 8 Pick. 464 Pratt v. Bacon, 10 Pick. 123.
    Have the court authority to enjoin the governor not to draw a warrant on the state treasurer, or the treasurer not to pay it, in case of an appropriation under a statute deemed unconstitutional ? Yet the governor and state treasurer are no less trustees of the Commonwealth’s funds, than selectmen and town treasurers are of town funds.
    The St. of 1839, c. 60, gave the court jurisdiction in equity to restrain violations of St. 1837, c. 85, respecting the surplus revenue. This shows that such jurisdiction did not exist before. See Simmons v. Inhabitants of Hanover, 23 Pick. 192.
    The plaintiffs, if aggrieved, have “a plain, adequate, and complete remedy at the common law.” If an illegal tax is imposed and collected, each individual may maintain an action against the town or its officers. See Weston v Gibbs, 23 Pick. 205.
    The stating part of the bill does not contain averments which show that the plaintiffs are entitled to the relief prayed for. Story Eq. PI. <§><§. 23, 33, 34. Wright v. Dame, 22 Pick. 55. And if any bill will lie in this case, the town should be made a party to it.
    
      Wells & Davis, for the plaintiffs.
    A town cannot lawfully appropriate money towards an object for which it cannot law fully cause a tax to be assessed and collected. Hooper v. Emery, 2 Shepley, 378. See also 18 Pick. 568.
    
      Bancroft v. Lynnfield, 18 Pick. 566, cited for the defendants, does not apply to the present case. That case was decided on the ground, that it was “ the duty of a town to repair all highways within its bounds, at the expense of the inhabitants, and has power, as incident to this duty, to indemnify a surveyor against any liability he may incur in «the bona fide discharge of this duty, although it may turn out that he mistook his legal rights and authority.” It may often be important to a town to try the question as to boundaries, &c., of highways; and this question may as well be tried in a suit against a surveyor as in any other form. The town, in such case, has a direct interest in the question. So in Nelson v. Inhabitants of Milford, 7 Pick. 18, the town had received a direct pecuniary benefit from the compromise which its assessors made with the tax payers. But the case at bar is wholly different, in principle, from either of those cases; and the votes of the town, on which the defendants rely, do not warrant the defendants in carrying them into effect. See Dillingham v. Snow, 5 Mass. 547. Stetson v. Kempton, 13 Mass. 279. Spaulding v. Lowell, 23 Pick. 79.
    It is submitted that a town cannot legally indemnify its officers or agents, where it would not be liable to an action for their misconduct. See Anthony v. Inhabitants of Adams, 1 Met. 287. Thayer v. Boston, 19 Pick. 516. Clearly the town would not have been liable for its selectmen’s refusal to permit Israel F. Hale to vote. Can a town indemnify a constable for serving a writ on a private individual ?
    On grounds of policy, as well as of adjudged cases, these votes of the town should be held to be unwarranted. Assessors have been relieved from part of their common law liability, by Rev. Sts. c. 7, <§> 44. Not so of selectmen. And unless the doctrine prevails, for which the plaintiffs contend, then the more gross the selectmen’s violation of law, and the greater the injury inflicted by them, and the damage recovered against them therefor, the more will a minority of a town suffer there» by; for the heavier will their tax be for indemnifying those who commit the injury.
    The authority of the court to grant the relief sought by the piesent bill is conferred by the Rev. Sts. c. 81, <§> 5, and § 8, clauses 2d and 6th. By these sections, the court may issue writs of prohibition, and all other processes, to corporations and individuals, that are necessary to the furtherance of justice and the regular execution of the laws; and may hear and determine in equity all suits for the enforcement and regulation of trusts, and all other cases in which more than two parties have distinct rights or interests, which cannot be definitively decided and adjusted in one action at law. By *§> 9, the court has also full power to issue writs of injunction.
    There is at least an implied trust in the defendants, which the court may compel them to execute according to law; for in Wright v. Dame, 22 Pick. 55, it was held that the statute extends to such a trust. See 2 Story on Eq. ^ 980, 1195, 1255, 1258. 2 Shepley, 382. Gray v. Portland Bank, 3 Mass. 379. Attorney General v. Utica Ins. Co. 2 Johns. Ch. 388. Verplanck v. Mercantile Ins. Co. and Scott v. De-peyster, 1 Edw. Ch. 84, 513. Robinson v. Smith, 3 Paige, 232. The case of Simmons v. Inhabitants of Hanover proceeded on the ground that the town and its officers were trustees.
    There are clearly more than two parties in this case, whose rights cannot be adjusted in a single suit at law. See Vose v. Grant, 15 Mass. 522. Spear v. Grant, 16 Mass. 15. Wood v. Dummer, 3 Mason, 308. Harris v. First Parish in Dor-chester, 23 Pick. 113.
    The town should not be a party to the bill, because the plaintiffs would thereby be made responsible, as tax payers in the town, for the expenses of obtaining their remedy for the illegal acts of the town. See Wordsworth on Joint Stock Companies, 291. Fisher v. Ellis, 3 Pick. 326. Society in Rayn-ham v. Trustees, &c. 23 Pick. 153, 154. Blain v Agar, 1 Simons, 37, and 2 Simons, 289. Angelí & Ames on Corp. (2d ed.) 252.
    There is no common law action that will give the plaintiffs redress, either jointly or severally.
   By the Court.

We are of opinion that the court has no jurisdiction in equity in the present case, and that the demurrer is well sustained. The plaintiffs are inhabitants of Bernafdston, and they seek to obtain, by a decree in equity, an injunction to prohibit and restrain the defendants, being the selectmen and treasurer of the town, from paying money and otherwise carrying into effect the votes of the town. Even if the town were made a party, we think the result would be the same. The bill sets forth no trust in which the complainants have an interest.

Nor is the case within the provision of the Rev. Sts. c. 81, <§> 8, clause 6th, which authorizes a proceeding in equity where there are more than two parties, having distinct rights and interests, which cannot be definitively decided and adjusted in one action at common law. That is manifestly designed to meet a case where a judgment between two parties would leave a controverted claim between one or the other of them with a third person not bound by the judgment. The present bears no resemblance to such a case.

Judgment, on the demurrer, for the defendants  