Flint v. Whitney , 28 Vt. 680 ( 1856 )

The opinion of the court was delivered by

Redeield, Ch. J.

I. It seems to us the form of the warrant, in this case, is so essential a departure from the form given in the statute, that it should be regarded as altogether insufficient. It, in truth, omits everything, almost, which is requisite to constitute a Valid warrant. It is a mere direction to the officer that if the persons assessed do not pay their .tax, “ to proceed with him or them as the law directs.” If the officer did not follow the statute more clearly than the form of the warrant does, we could scarcely conjecture what he might not feel justified in doing, under such general words. ■ It reminds one of the form of the aboriginal warrant to arrest one for crimes. “I, Hihondi. Quick you take A. B. Fast you hold him. Straight you bring him before Hihondi”! This is even more specific than the warrant in the present case. Still it has been contrasted with the forms of such process, in modern states, as a significant antithesis.

n. We are not satisfied that there was any such refusal to take property, as should make the defendant a trespasser. There was nothing like an offer of property, but, from what passed at the time of the arrest, it is evident the defendant’s understanding was that, if he took property, he must wait and go to some distance. For he said, “he wanted his body then.” If the plaintiff had been serious in desiring the defendant,to accept of property in discharge of the body, he should have made some distinct offer of some specific property, especially as he had abundance with him at the time. The statute is express, that the collector may execute his warrant “ wherever he may find the property or body of the delinquent.” He was not obliged to delay.

III. Chapter 81, § 15, requires the officer, in committing a delinquent for taxes, to leave a copy of his warrant, and “ certify his doings thereon in relation to such delinquent.” This was not done in the present case. In Henry v. Tilson, 19 Vt. 447, this is held indispensable, and that the omission cannot be supplied by proof at the trial that the officer had, in fact, proceeded regularly. And, in a case between the same parties, 17 Vt. 479, it was held that such a warrant, even where there is commitment, is not returnable process, so that the surveyor’s certificate, entered upon the warrant at a future day, cannot be treated as in the nature of a return upon process, and so conclusive upon the parties.

Judgment affirmed.