*1 HIBBARD v. CLARK. 155 entirety, an tlie contract with the being being must be the suit. Cummings, they joined The accedes view, to this leave to amend by asks her co-tenant a making On the cited it plaintiff. authority by my the case brother that this be made on such terms in appears arrangement may regard to costs as court. may be determined circuit This done, being I see no reason not maintain their action. why plaintiffs may The involved this case principal question was settled Smith, in the recent and well-considered Chandler v. Coe, case of 54 N. where was held that an undisclosed liable sued and entitled to sue an verbal upon contract, also express written not upon contract seal simple (but nego under tiable made him in instrument), by his for contract, name. agent agent’s The contract Wells one follows that Bryant entire must Cummings join bringing the suit. The amendment join ing Cummings co-plaintiff was clearly admissible. ; sec. 16 Pitkin v. 43 N. H. 138. terms to im Roby, posed must be settled the court below.
Case discharged. Hibbard Clark. Aug. 13, 1875. Trusteeprocess—Taxes—Set-off.
Taxes are within those terms not debt meaning used Statutes, in General secs. and 8.
Neither a collector of taxes nor the can maintain a suit to enforce town of taxes. individual, an town, summoned as trustee of set off the cannot taxes
assessed such individual such town due amount to such individual. town From Court. Grafton Circuit
Foreign Attachment. of Lucius M. Howe deposition was as follows: I, Howe, that I am say, Lucius M. chairman of depose that, board of selectmen town time of [Plymouth] Clark had an account town, service of said writ on Joseph costs for mostly services and his ser- paid town personal out— $414.99; that at the same time he owed the vices—of cash town, $312.42, in his were hands there outstand- belonging him the selectmen of said ing legally Ply- HIBBARD v. CLARK.
moutli, $82.37; the amount of also unpaid, taxes legally *2 Houston, assessed of Clark & against which said Clark was $45.38, ; partner, and that said unpaid town claims the to offset said and taxes money claim or against any debt on account Clark, due the said same; to the amount of the and same have been credited on said Clark’s account since the service of said or writ trustee and a found against town, balance due said town from said Clark; it, town, said as understand was not, at the time of the —and service of said nor has it been at time writ, since, indebted any to said Clark, nor had chattels, or any money, goods, credits of rights, Clark in its hands or unless possession, the facts aforesaid.” of the trustee chargeability on the foregoing was transferred to this court J. deposition by for the
Carpenter,
plaintiffs.
Taxes are not a debt due to the
No
town.
action
in
lies
behalf of
the town to enforce
thereof.
can
They
be
collected
in
only
the manner
out by the statutes.
In a suit
pointed
town,
against the
taxes assessed
against
unpaid cannot
plaintiff
be set off.
Gould,
v.
44;
Andover
6 Mass.
v.
8
Stetson,
;
Met. 393
v.
Pierce
Crapo
;
3
Boston, Met. 520 Gen. Stats.,
secs. 7 and 8.
off,
trustee
set
what he owes the
against
debtor, such
principal
demands
in
only
he
set
one or the
might
other of
off
the modes
allowed
statute or the
law.
common
Broivn v.
43 N.
Warren,
;
v.
N.
L. Pling, Plymouth. W. trustee an I. The process equitable one, and has so been always in this state. The bar generally understand that a regarded trusteed, set off taxes legally when the defendant. has been so held at nisi in repeatedly cases like the present. prius set-off, As to see Trustee Process,” Cushing 125. II. The cases Massachusetts cited a dif- by the are upon plaintiffs statute from ours, do and the cases
ferent consequently apply; directly between the defendant, and the under the and, are process, broader more liberal rule obtains. trustee trustee, are incorrect in plaintiffs III. their that the position, off can set this amount the town owe the defendant process, the same claims demands done only could have HIBBARD v. CLARK. suit at law, had the defendant sued town to recover his account. v. Brown Warren, 430; 43 N. H. 310. Concord 33 N. H. Pillsiury, IV. Taxes are in of a nature judgment, regarded
preferred
claims
settlement of estates and in cases of bankruptcy
and we see no reason
should not
allowed
off the
why
town
to set
taxes against Clark, and Clark &
of which Clark was a
Houston,
part-
ner, in this case.
Smith, Stats,
By
208, sec.
provided
there are
mutual debts
de-
demands between the
and the
fendant, at the time of the
action,
the plaintiff’s
one debt or demand
bemay
set off
other.”
The trustee process
an
of this
equitable
the courts
proceeding,
*3
state have uniformly held that a
retain,
trustee is entitled to
or to set
off against the debt
defendant,
he
owe
de
which
the principal
off,
mand which he
set
might
or of which he
avail himself
might
by any
of the modes allowed, either by the common or
law,
statute
if the action
were
the
brought by
defendant
or if
himself,
the
were
proceedings
wholly between the
ren, 43 N.
and
trustee
the
defendant. Brown
principal
War
436,
Swamscott
Co.v.
Machine
25 H.
and
N.
Partridge,
authorities
cited,
there
where it
of
is said
the
and
that
liabilities
rights
trustees are not
to their
changed
the fact that the action
prejudice by
is commenced by the creditor of the
defendant and not
principal
the principal defendant himself. The
only object
effect
legitimate
of the
is,
trustee
to entitle the
process
creditor to secure and apply
the
his
discharge of
claim
the
sums
defendant such
of money as may be found to
or
legally
equitably due
trustee to the
or
principal defendant,
such other
or
of the
goods
credits
defendant as may be found in his
what
possession beyond
may be due
from the defendant to the
trustee.
Ib.,
374.
The
for our consideration is,
whether the taxes assessed
the town of
suit,
in
Plymouth, the trustee
Clark,
this
against Joseph
the
principal defendant,
Houston,
Clark &
of
he is a member, constitute a
or
“debt
demand” which can be set off
in this proceeding against
sum
the
which is due from
to the
the trustee
defendant;
am of the
that
not. These words
they do
opinion
”
“ debt and demand are often used as
The
is the
former
synonymous.
more
and the latter
would in-
specific
the more
term. Either
general
clude a claim for
due,
and either
broad
money alleged
enough
allow a
defend-
judgment
recovered
the trustee
the principal
ant to be set
in
off
sum
the
from the former
against the
found due
latter
the process of
attachment.
is not
to examine
foreign
important
more
this
if
case,
of
closely,
distinction,
any,
purposes
these terms.
The
a
for the town claims
nature of
counsel
are
judgment, so that
they can be thus set off
the trustee
If this claim is
follow that
principal.
correct, would''probably
collector’s
is in
of
think this
warrant
the nature
an execution but I
HIBBARD v. CLARK.
are
sentences
cannot be maintained.
position
Judgments
judicial
of courts
their
are
rendered
causes within
Taxes
jurisdiction.
author-
and duties
proportional
reasonable assessments
imposed
ity of
law
the inhabitants of the state.
do not
They
partake
nature of
collection of them are
judgments.
imposition
the man-
acts,
ministerial
as to
subjects
inquiry
are
proper
ner of
in the
their assessment and the mode
their enforcement
nor
forum;
no
judicial
and for
collection
of action
right
given,
their
between
be turned into
nor are
contracts
they
they
judgments,
either
or
but
party
positive
party,
express
implied;
acts of
in-
various
agents,
its
government, through
binding upon
and to
of which their
habitants,
consent,
enforcing
the making
personal
in Pierce v.
J.,
Boston,
not
individually,
required.
Hubbard,
rule to all and No action can be applies public private. taxes, maintained to or town ex state, county, compel payment an action is cept given by cases in which particular expressly statute.” arc By the statutes of this measures pro- state severe ample as- for
vided the collection of taxes. The real estate person following is liolden first of June day sessed for one from the year liable assessment; chattels, his ailPd limited goods exceptions, with distraint; and for his can be taken and committed to want thereof body
HIBBARD CLARK. col- time the At the same Stats., ch. 54. Gen. jail. to the common col- for the prompt to the town accountability to a rigid is held lector his official suit upon and is liable to a list, of his lection payment ch. 59. Ib., duties. of his for non-performance to an extent bond for means full and ample has such legislature provided As the collection for their and has made taxes, provision collection the taxes cannot set off in this suit that the trustee I am clear suit, amount which and his the defendant for the are chargeable him, to consequently from them also their less $102.57, $312.42, leaving credits sum of less $414.99, costs. the col- has armed with which statute With the ample powers taxes, and the equally ample collection these enforce the lector to to has armed the town enforce which statute powers fail will that the trustee collector, hardly happen of these assessments. realize the amount court, a motion has from circuit case was transferred Since this further for leave to take to this court the trustees been addressed this' If liability. application of their upon depositions to the circuit court: it should addressed all, have been be entertained encour- think that would be here, motion is we but if the properly loose, of law have been too after altogether questions aging practice trustee is after a chargeable, to the court whether a submitted favor, in his his getting judgment has taken chances of to a differ- him for the proceeding allow case reopen purpose ent result. that the court would never interfere say We do not mean to done; such a but practice allow this to be should we are the opinion sufficient reason in and we do not see encouraged, from what we think case present proper practice. departing indi- on by government Taxes are contributions imposed Law Die. The mode of the state. Bouv. viduals the service does not is fully their collection prescribed A to enforce their set- payment. an action bring include in some of a tax sense off is in the nature cross action. assessed, has where it been city in favor of the town or to be a demand an action can be brought, it is not a demand but think, therefore, fair within the it is not a debt or meaning *5 This 7, view 208, strength- sec. to set-off. Stats., relating Gen. that provides next section of the same chapter, ened unless a of action aforesaid, right shall be set off as ex- debt or demand action. at the of the plaintiffs’ isted thereon a further disclosure of am that the motion to take of opinion denied, for the reasons given made in this should be trustee, court, should charged. and that the trustee Smith, brother my is not a sum certain If an individual C. a tax Cushing, GILMAN CATE. sense due from liim to a debt therefore the strictest word, of a right and if it is not also a sum certain which the town has a it claim, so me understand quite impossible money of terms. If the individual a sum of meaning which is the town owes debt, him in 1ns duo to own and the tax be his own right, If, seems to me must be mutual debts and demands. there- fore, 8, were not sec. provision “ no debt or shall off as a right bo set aforesaid unless action,” action there existed thereon at the commencement the plaintiffs’ allowed. would seem to be no doubt that the set-off to be ought If commence by right action this statute meant suit at law, it is clear that the and this is the allowed, set-off cannot be of á opinion the court. majority
Trustee chargeable. Aug. 13, 1875. v. Cate. Gilman Amendment.
In an action of mistake described trespass qu. plaintiff having by cl. Jr., intended, line west of the locus in 32 rods east of the line he quo in- was to add a new count the locus permitted describing originally
tended. that the amendment was admissible. Meld, From Grafton Circuit Court. moved amend new by filing Trespass, qu. cl.fr.
count, follows, viz., defendants, for that the on the thirteenth —“Also day day times, and on divers from said thirteenth January, 1873, days to the of this January, 1873, writ, date of with force purchase close, and arms broke entered the situated in said Beth- plaintiff’s lehem, : at south-east' bounded described as follows Beginning corner lot number to a only; westerly thence designated stood, marked on four as a formerly spruce tree sides point corner; east, rods; thence north nine one hundred thence degrees running line, the last described to the easterly, angles check line between said only; lot and lot number designated thence south of lot southerly at, the bound half began designated cut down by number as claimed only, plaintiff—and and carried trees of the of the value away one hundred spruce use, of two dollars them to their own each, converted peace.”