96 Mass. 48 | Mass. | 1867
We can see no reason to doubt that the defendants are liable for the whole sum collected and received for taxes, which had been duly assessed to individuals within the district for which their principal acted as deputy collector, and which he had failed to pay over or account for to the plaintiff after he had collected them. An examination of the various provisions of U. S. St. 1864, c. 173, relating to the assessment and collection of taxes, shows that they become absolutely due immediately after they are ascertained and assessed, and lists thereof are prepared under § 20 of the act aforesaid by the assessors. It is the assessment thus finally determined which fixes the liability of the person assessed, and renders him liable presently for the amount of the tax, irrespectively of the transmission of the list of taxes to the collector or deputy collector of the district. The provisions of the statute regulating the delivery of lists to collectors, and requiring notices and demand
The case finds that all moneys received by the principal in the bond declared on were paid to him for taxes in his capacity as deputy collector, by parties to whom they had been duly assessed and whose names were borne on the lists prepared by the assessors. We cannot doubt that the sums thus paid and received operated as a valid discharge of the tax to the persons to whom they were assessed, and that the only remedy of the government to recover the money so paid was against the collector for money received by his deputy virtute officii. In this view it is clear that the plaintiff is entitled to judgment for the penalty of the bond, and that execution ought to issue for the entire sum remaining due from the principal for taxes received by him.
This result renders it wholly immaterial to the sureties how the property received by the plaintiff as collateral security for the liability to him of their principal was appropriated. Whether applied to the payment of sums received in payment of the earlier or later assessments, it extinguished pro tanto their liability to the plaintiff as sureties on the bond. But if this were
Judgment for the plaintiff1