Northumberland v. Cobleigh , 59 N.H. 250 ( 1879 )

1. The bonds being specially declared upon, and there having been no denial of the defendants' signatures within the first four days of the first term, the signatures are regarded as admitted. No formal proof of their execution was therefore required. 46th Rule of Court.

2. There may be a less number of seals than signers to an instrument. One seal may serve for all; and where the bond contains the usual attestation clause, "sealed with our seals," the law will intend that all the signers adopt one seal. Pequawkett Bridge v. Mathes, 7 N.H. 230; Tenney v. Lumber Co., 48 N.H. 343.

3. It is sufficient, in cases where merely third parties are interested, to show that a selectman or other officer acted as such, or was an officer de facto. It is a general rule that the validity of the acts of an officer de facto cannot be called in question indirectly in a suit to which he is not a party. Tucker v. Aiken, 7 N.H. 113; Carr v. Dodge, 10 N.H. 403; Prescott v. Hayes, 42 N.H. 56, 58; Roberts v. Holmes, 54 N.H. 560.

4. Where a party proceeds in case for an illegal assessment, he must prove it illegal: there is no presumption that it is illegal. Perry v. Buss, 15 N.H. 222. But where acts are of an official nature, or require the concurrence of official persons, a presumption arises in favor of their due execution. Bro. Max. 944; Shackford v. Newington, 46 N.H. 415,420-422. The present is a case where the maxim, that all acts are presumed to have been rightly and regularly done, applies. If the collector would exonerate himself upon the ground that the taxes were not legally assessed, he should point out in what respect the assessments were illegal. Charlotte v. Webb, 7 Vt. 49. The defendants' proposition would require the plaintiffs to show the age, residence, and citizenship of each person named in the list, the due voting of school-district, town, county, and state taxes, and the existence and ownership of all the different descriptions and various articles of property upon which the assessments were made. If any of the persons assessed were not liable to assessment, or if, on account of their death, poverty, or absence, or for other sufficient reasons, their taxes could not be collected, such facts would be good causes for abatement; and it would be the duty of the selectmen (the collector not being in fault) to abate such taxes. Gen. St., c. 53, s. 10. It does not appear in this case that the selectmen have refused to abate taxes where there were sufficient reasons therefor.

5. As the entries were made in the presence and with the knowledge and assent of the collector, they were evidence in the nature of admissions, and were admissible as showing how far he had complied with the condition of his bond in collecting the taxes committed to him. For the same reason the lists of uncollected taxes, taken off at the looking over in March, 1877, were admissible.

6. We do not see any ground upon which the motion for a nonsuit could have been granted; and none has been suggested.

7. The several tax-lists had been in the collector's hands from three to seven years, according to the year in which they were issued. The collector was consequently in arrears from two to six years in his collections. The removal of the lists and warrants in April, 1877, did not affect any liability previously incurred by non-performance of his duty. It was his duty to collect the taxes promptly, within the year, and to apply seasonably for abatements of such as were uncollectible. Whether the taking away of the lists and warrants operated as a removal of the collector from office or not, neither he nor his sureties were thereby discharged from existing liability for any of his acts or negligence. Gen. St., c. 39, s. 11. There was no offer to show that the selectmen had refused to abate any taxes that ought to have been abated, nor to explain the collector's failure to obtain an abatement; and the legal inference is, that the deficiency was due to his negligence prior to April, 1877.

8. The testimony of Wood and Eames was admissible as explaining their conduct in taking away the books, if it was material for the defendants to put in evidence of that fact (Carter v. Beals, 44 N.H. 408); and if inadmissible it was immaterial, and not likely to prejudice the defendants.

9. The town had no power to make abatements of taxes, or to delay or suspend their payment. The power of abatement is lodged with the selectmen, acting under the responsibility of an official oath. The collector's powers and duties are defined by statute, and are ample for the prompt collection of his list. The duties of the selectmen are confined to the proper assessment of the taxes, the delivery of the list with a proper warrant to the collector, and to the abatement of taxes, upon seasonable application, for sufficient reasons. To insure the faithful performance of his duties, the collector is required by statute to give a bond with sureties. His stringent powers for enforcing prompt collections by arrest or distraint were never intended to be weakened or undermined by the passage in town-meeting of a vote directing the collection of delinquent assessments so fast only as can be done with convenience and without pressure. The statute affords no warrant for such a vote, and the vote is inoperative.

10. Selectmen have power to issue an extent when there is danger that the collector may abscond, or be unable to pay the state and county taxes. Gen. St., c. 59, s. 5; Kimball v. Russell, 56 N.H. 488. If the plaintiffs cannot recover on the bonds for the uncollected taxes because no extent was issued, then it matters not how great the collector's neglect is, provided he pays over what he collects. He might neglect to make any collections, and so have nothing to pay over; and, if the defendants' position is correct, he would not be liable on his bond, because the neglect of the selectmen to issue an extent is a waiver of any breach in the condition of the bond. The bond required of the collector is for the faithful discharge of the duties of his office, which includes not only the prompt payment of the taxes, when collected, to the officers designated in the warrant, but the prompt collection of all the collectible taxes assessed. The power conferred upon the town treasurer to issue an extent against the collector is not the only remedy which the statute gives to enforce the collection and payment of the tax-list. If that were so, then the provision of Gen. St., c. 39, s. 4, requiring the collector, within six days after after his appointment or election, to give bond, with sufficient sureties to the acceptance of the town or selectmen, for the faithful performance of his official duties, and in default that the office shall become vacant, is meaningless. The remedy by extent is merely cumulative. Middlebury v. Nixon, 1 Vt. 232. Because it is a harsh but expeditious remedy, it was designed to be enforced when the slower process of a suit on the bond might fail to afford opportune relief.

The amount of the verdict is immaterial. The court will render judgment at the trial term for such amount as is equitably due. Gen. St., c. 213, s. 9. Before such judgment is rendered, application can be made to the selectmen, in behalf of the collector, for an abatement of the taxes which he contends were uncollectible. The amount equitably due will be determined upon a consideration of all material facts bearing on the question of equity.

Exceptions overruled.

STANLEY, J., did not sit: the others concurred.