Inhabitants of Porter v. Stanley , 47 Me. 515 ( 1859 )

The opinion of the Court was drawn up by

Tenney, C. J.

William Stanley was the collector of taxes of the town of Porter, for the year 1854, and for the faithful performance of his duty as such, the bond in suit was given. He was also collector and treasurer of the town for the years 1855 and 1856, and gave bonds, with different sureties from those on the bond for the year 1854.

As collector for the year 1854, William Stanley received moneys on the assessment of that year, and a part of the same he omitted to pay into the treasury, or otherwise account for, from the collections so made. But on February 27, 1857, as appears by the books of the treasurer, and other" evidence in the case, the selectmen appropriated from moneys received on the assessments of the two years, 1855 and 1856, sufficient to balance the deficiency of the year 1854. This does not appear to have been done at the request of William Stanley, or by his consent, any further than, if it was right that it should be so done, he would consent thereto. It does not appear that the sureties on either of the bonds were consulted, or had knowledge of the appropriations, or that either of the bonds were cancelled.

The appropriations so made were manifestly inequitable, as it respects the sureties, and, by the authorities cited for the plaintiffs, cannot be upheld. It is said, in the opinion of the Court in the case of U. States v. January & al., 7 Cranch, 572, “It will be generally admitted that moneys arising due and collected subsequently to the execution of the second bond, cannot be applied to the discharge of the first bond, without manifest injury to the surety in the second bond.”

It was clearly not the intention, of the selectmen or of William Stanley, that the amount collected by him on the assessment of the year 1854, and not paid, as of the taxes of that year, should be suffered to be a charge against hirii, without security under any bond. It certainly cannot be covered by the bond of 1855 or by that of 1856. If the sureties on either of the bonds are still liable therefor, it must be those on that for the year 1854. That bond remaining uncancelled, in fact, and the appropriation being made under a misapprehension, this suit is maintainable.

Defendants defaulted.

Rice, Appleton, Goodenow, Davis, and Kent, JJ., concurred.