Inhabitants of Sandwich v. Fish , 68 Mass. 298 ( 1854 )

Shaw, C. J.

The first ground of defence is payment, or, in other words, that the payments made to the town by the collector, during the four years, exceeded the tax bills during those years. The bond of the collector is undoubtedly for each year, and would not, of itself, render the collector and his sureties liable for the balance of the account of a previous year. It does not appear, and is not material to the decision, whether the sureties of Fish for the years previous to 1847 were the same or not. But the general rule, in the appropriation of payments, is, that money, not otherwise appropriated by either party, is to be applied to the earliest debt. And that rule applies here. When accounts are settled yearly, and the balance transferred to the new account, if no appropriation is made of the payments by the parties, they must be applied in the order of priority, so that each payment shall go to discharge the earliest debit. Boston Hat Manufactory v. Messinger, 2 Pick. 223. The balance due on each year’s account previous to the last being extinguished by the payments, the deficit falls on the last year. Colerain v. Bell, 9 Met. 499. And the plaintiffs may amend their declaration so as to charge the whole deficit on the fourth count, and will then be entitled to recover on that count such sum as may be found due by an assessor.

The provisions of the statutes as to the form of warrants and tax lists, and the place where the lists shall be deposited, are intended for the benefit of the tax payer. As to all other persons, they are directory merely, and not conditions precedent. Defects in the warrant or tax list might be a good excuse for not executing the warrant. But to say that a collector, who has collected the money, without objection by the tax payers, is not liable to account therefor, would be as contrary to the rules of law, as to justice. He can only avail himself of such defects as have prevented his performance of his duty.

Case referred to cm assessor.