15 Ind. 26 | Ind. | 1860
Ewing sues Manley and. Robeson to recover possession of certain articles of personal property of which he claims to he the owner through purchase from the president of the Laurel Bank.
The defendants answer: 1. General denial. 2. “That the Laurel Bank was organized under ‘ an act to authorize and regulate the business of general banking,’ approved May 20, 1852; was located and doing business at Lcmrel, in Franldin County; that after its organization and location,
The first two grounds relied upon for the reversal of the judgment are defects in pleading.
It is claimed that the answer, in setting up the tax upon the bank, should have set out 'the steps taken in its organization, that it might appear whether it was a legal corporation.
In this we do not concur. On the trial, it would not be necessary that proof of these steps should be made to establish the liability of the bank. It would only be necessary to show that the bank had assumed to organize under the general banking-law, which the court judicially knows to exist, and was acting under such organization. The bank would be estopped to deny the regularity of its organization.
In such a case as this it is not necessary to allege more than it is necessary to prove. See Shoppal v. Hubbard, 14 Ind., and cases cited. The case at bar is entirely different from Brown v. Killian, 11 Ind. 449.
Again: it is claimed that a legal' assessment of the tax should be shown.
This we think a mistake.
A constable or sheriff is not bound, as a general proposition, to look beyond the face of the writ delivered'to him to execute. If it is legal, on its face, he is bound to execute it; and he can plead it as a justification, though the proceedings before the magistrate, which led to the issue of the writ, were illegal. It is different where the suit is against the plaintiff who procures, or the justice who issues the writ. Stephens on Pl., 329. Patterson v. Kise, 2 Blackf. 127, as modified by Davis v. Bush, 4 Id. 330; see, also, Stewart v. The State, 4 Id. 171. We think the same rule applies to a tax-collector. The law requires the duplicate to be delivered to him, and requires him to collect the tax. The duplicate is bis authority; and, if legal, on its face, must be his justification, and sufficient authority to enable him to hold property seized in the legal collection of taxes upon it. Whether the purchaser of the property would acquire a title at a legal sale upon an illegal tax, is another question. So, whether a
Further: it is claimed that the tax-duplicate is a written instrument, a copy of which should have been filed with the answer. It will be observed that our statute (1 R. S. p. 129) does not require any precept to be delivered with the duplicate—simply the duplicate, which is, itself, but little more than a copy of the assessment.
There is some difficulty in determining what is a written instrument, within the meaning of the statute. An account, though in writing, has not been considered such by this Court, though a written assignment thereof has been. 12 Ind. 241. So of a record of a suit or judgment. 14 Ind. 222. "While, in the Superior Court of Cincinnati, Ohio, a learned and able tribunal, such record is held not to be a written instrument within the intention of the statute. They say it embraces only instruments “ executed by, or between, parties.” Western Law Monthly, vol. 2, 315. See Worcester’s Dictionary, “ Instrument.” We think the tax-duplicate more nearly resembles a book-account, and should not be regarded as within the statutory meaning of written instrument.
Another position taken is, that taxes upon free banks are only to be collected by the State auditor out of interest accruing upon deposited bonds. By the general banking-law of 1852, the principal, of the bonds deposited with the auditor, was a security for the redemption of the notes of the bank, and, perhaps, the payment of deposits. The State v. Dunn, 10 Ind. 269. The interest accruing on the bonds might also be thus applied in certain contingencies; but, till the happening of some one of these contingencies, the interest might be paid over to the banks. 1 R. S. p. 154, § 9. The same provisions are re-enacted in the Act of 1855, which became a law in March of that year. Acts of 1855, p. 35, § 10. On January 26, 1855, an act entitled “ An act to authorize the auditor or other officer of State to retain so much of the interest on the stocks of any bank as may be sufficient to pay its taxes, and to indemnify the State against loss of any sum due, by any bank, to the State,” became a law. Acts of
This view is strengthened by the emergency-clause of the act. It recites that taxes against the banks remain unpaid; but proceeds upon the assumption that the circulation is being otherwise redeemed, or may have been entirely redeemed ; so that the interest, not being required for that purpose, might, under the existing law, “ be at once withdrawn and, where the bank had wound up, or had disposed of all its property, the State and counties be left without remedy: so that it became proper to secure such interest as was not required for the redemption of circulation, for an indemnity against other indebtedness.
The next question is: Was this act, conferring upon the State auditor the right, in certain contingencies, to hold the • interest on bank bonds, (provided any interest had been paid in on the bonds,) a repeal of the general revenue law, so far as it authorizes and requires the county treasurer to collect the tax from the bank, or its property, in the usual mode? See Cones v. Wilson, 14 Ind. We think not. We think it was only a cumulative remedy—an additional security. This is manifest from the second section of the act, which requires each county auditor to certify to the State auditor the amount of taxes “ due by any bank or banks organized ” in his county. It does not assume to interfere with the
If the bank had had interest in the hands of the auditor of State, and had agreed with him that an amount, equal to the taxes due, should be actually appropriated to their payment; and had taken the auditor’s receipt therefor; perhaps the county treasurer would have been authorized to accept such x*eceipt as cash, and could have used it in his settlement with the State treasurer.
Instructions of the Court are objected to; but as we think the verdict is clearly right on the evidence, we shall not examine them. 1 Ind. 405.
It appears that William H. Doughty, president of the bank, was assessed for the safe mentioned in the verdict; that it was not sold, by him, till after the lien of the tax had attached; and that it was still in the county when seized. See the case of Cones v. Wilson, 14 Ind. The collector was, therefore, authorized to seize it for the tax.
In this case, as we have seen, both jiarties recovered; each a portion of the property; and, in such cases, the rule seems to be that, each party recovers his costs of the other: but no question, as to costs, appears to have been raised.
The judgment is affirmed, with costs.