Town of St. Albans v. Failey , 46 Vt. 448 ( 1874 )

The opinion of the court was delivered by

Redfield, J.

This action is upon the collector’s bond of defendant Eailey, and others as his sureties, and the alleged breach is the not collecting and paying over to the town treasurer the several sums specified in the rate-bills of the year 1868. Eailey was the collector of taxes, duly elected, for the years 1868,1869, and 1870. The tax-bills for the latter year were never put into the hands of said Eailey. On the 19th of September, 1870,Failey having neglected to pay the state tax assessed on the list of 1869, the town of St. Albans paid said tax to the state treasurer, amounting to the sum of $5,676.37. Eailey paid into the town treasury, from time to time as he collected, and took the treasurer’s receipt for the same, without any direction or understanding as to the application. Some of these receipts were written on the blank leaves of the rate-book for 1868, and some in like manner on the book of 1869. In August, 1870, the authorities of the town took the tax-books from said Eailey for both years, with uncollected taxes thereon, and delivered them to Weeks, who succeeded Eailey as collector. On the 1st of September, 1870, the amount paid into the town treasury by Eailey, allowing the uncollected taxes turned over to Weeks, exceeded the amount due the town treasury, on both tax-bills, for 1868 and 1869. But the amount receipted on the tax-book for 1868, did not cancel the taxes for that year.

I. The payments of the collector, into the treasury of the town, would be applied, as a matter of course, in liquidation of his then present liability and indebtedness; and such payments being sufficient to extinguish all taxes payable into the town treasury for both years, operated as a full extinguishment of the claims upon the collector for such taxes. The mere fact that the receipts were written on the blank leaf of the tax-book of 1869, when no application of the payment was directed or made, is of little importance.

II. The rule is well settled in this state, and in the United States supreme court, as well as in England, that general payments and credits will be applied to extinguish indebtednesses in the order of time in which they accrued. And when the rights of sureties are involved, the court would be more stringent in enforcing this rule, as it is deemed just axxd equitable.

The authorities are fully collated, and the rule of law very clearly stated, by Isham, J., in Morgan et al v. Tarbell, 28 Vt. 498. See also Pierce, Clark & Co. v. Knight, Poland, J., 31 Vt. 701.

Judgment reversed, and cause remanded.