Hoxie v. Weston, 19 Me. 322

Hoxie v. Weston

19 Me. 322 | Me. | 1841

The opinion of the Court was delivered by

Shepley J.

It appears, that the plaintiff was treasurer of the town of Belgrade for the year 1834. That the defendant, Weston, was an inhabitant of that town, and was assessed that year the sum of seventeen dollars and thirty-five cents- That Richard Mills was collector, and by virtue of warrant committed Weston in the year 1836, for neglecting the payment of his tax. And the bond now in suit was voluntarily made and executed by him, and by the other defendant as his surety, to relieve himself from imprisonment. It was made payable to-the plaintiff, as treasurer, or to his successor in office ; although he had before that time ceased to be treasurer.

The defence rests upon several objections to the bond and to the right of the plaintiff to maintain a suit upon it. In considering them it becomes necessary to ascertain, what Westons’ rights and duties were, if he would relieve himself from his imprisonment. It is provided in the act for the assessment and collection of taxes, c. 116 § 52, that “ any person committed to gaol for his taxes shall have the liberty of gaol yard upon his procuring sufficient bonds as is by law directed for other debtors.”

The act of 1822 for the relief of poor debtors, c. 209, § 22, provided that a person committed for taxes “ shall give bond to the treasurer, from whom such warrant issued.” But the *327section appears to embrace only that class of cases, where the commitment is by virtue of a warrant from the treasurer, and not the class where the warrant issues from the assessors to the collector, as in this case. The ^twenty-third section of the same act provided, that “ any person standing committed to prison by virtue of any warrant for the collection of any tax, rate, or assessment,” might be discharged by the provisions of that and of the twenty-fourth section. The language is sufficiently broad to comprehend those cases where a bond had been given for the liberty of the gaol yard. The act of 1828 extended the limits of the gaol yards to the bounds of the counties. The act of 1831, c. 520, contained no provisions respecting persons committed for taxes. The act of 1835, c. 195, § 14, provided, that “ any person committed to prison by virtue of any warrant for the collection of any tax, shall stand in the same relation to the assessors of the city, town, parish, or plantation, as the debtor shall to the creditor in this act, and the same proceedings may be had, and the person taxed and committed shall be subjected to the same liabilities and entitled to the same benefits and immunities as debtors are in regard to their creditors, as herein provided.” Provision,is made in the eighth section, that the debtor imprisoned “ shall give bond in double the amount, for which he’is so arrested and imprisoned, conditioned, that in six months” he will cite the creditor and submit himself to examination and take the oath, or pay the debt, costs, and fees, or be delivered into the custody of the gaoler. The section is silent as to whom the bond should be given, but if the legal inference be, that it should be payable to the creditor, the bond in cases of commitments for taxes . should be given to the assessors; and they must become the prosecutors and collectors in such cases. This would seem to be the only legitimate construction, and it became certain by the supplementary act of 1836, which did not take effect until after the date of this bond. If, therefore, the act of 1835, included cases ,of commitment by virtue of warrants for the collection of (axes issued before its enactment, the bond in this case should have been given to the assessors, and the con*328dition should have been made in conformity to the provisions of the eighth section. But it is contended, that the case does not come within the provisions of that act, for the like reasons that required the Court to decide that the final proceedings on suits commenced before that time were not embraced by it. There was, however, an express provision in the seventeenth section, that the act “ shall not be so construed as to affect any suit or suits already commencedwhile the language of the fourteenth section already quoted embraces all commitments for taxes, whether the warrants issued before or after the enactment, and there is no exception relating to them. The collection of taxes is a matter of public right and policy, and tlie same reasons did not exist for an exception as in the case of private rights. There is no reason for believing that such was the intention, and the language is too decisive to permit the construction, that the act was to be considered as prospective in this case as well as in the case of suits between party and party. The defendant, Weston, was entitled to give a bond to the assessors in conformity to the provisions of the eighth section. He was not obliged to give any bond. He did give one, not in conformity to those provisions, and was released from prison; and the question is, whether he is legally bound by it. It was not made to accomplish any illegal purpose, but. for one permitted by law. It is no valid objection to it, that it was not made in conformity to the provisions of the statute, and is not therefore a good statute bond ; for it may be good at common law. Winthrop v. Dockendorff, 3 Greenl. 156. All acts prescribing and defining • gaol yards and limits were repealed by the seventeenth section of the act of 1835. And' the provision in the condition of the bond, that he should not depart without the exterior bounds of the gaol yard, was inoperative. It could not be the occasion of a breach of it. Its insertion did not destroy the validity of the bond. Kavanagh v. Saunders, 8 Greenl. 422.

As it is apparent, that the bond was not given to the proper persons, it is insisted, that the plaintiff cannot sue upon it. There can be no doubt, that by thé common law a bond may *329bo good and may be enforced by a suit, although the obligee have no beneficial interest in it. Cases are common, where it appears from the condition, that a third person is the only, one beneficially interested. If the obligee accept the bond in such cases, he is regarded as assenting to the transaction and as submitting to execute the trust apparent on the paper, or to allow it to be executed by the use of his name upon proper terms. The commencement of a suit is prima facie evidence of his assent. In the case of Baker v. Haley, 5 Greenl. 240, the bond was given to the officer, who had no interest in it. The statute did not declare to whom it should be given, and it was decided to be a good statute bond. In the case of Anderson v. Langdon, 1 Wheat. 85, the bond was given to the directors of a private association, who brought the suit after they ceased to be directors, and it was sustained. The provision of the statute, that the bond should be given to the assessors, would prevent its being considered a good statute bond, or a protection to the gabl keeper; but. it would not prevent a person thus lawfully imprisoned from making a bond or contract with his creditor, which might be good at common law. And a bond thus given| is to be judged by its rules ; and it need not be given to the persons designated by the statute, but may conform to the agreement of the parties. The decision in the case of Purple v. Purple, 5 Pick. 226, is not considered as opposed to these positions. The statute in that case required the bond to be given to the party from whom the goods were to be replevied, as a condition precedent; and the officer was regarded as a trespasser, “ and the purpose and effect of it [the bond] were to aid and abet him in a trespass upon the attaching officer.”

The plaintiff would not be precluded from maintaining the suit by reason of that clause in the bond, making it payable to him or his successor in office ; for it does not come within the class of contracts which are authorized by the statute, c. 59, <§> 26, to be prosecuted by town treasurers or their successors in office. His rights, as obligee, are not destroyed by the insertion of those words.

*330The bond was forfeited only by a neglect to surrender himself within six months, and the action was commenced within the year after the forfeiture.

It is insisted, that the obligation was discharged by an abatement of the tax and costs. Disregarding all parol evidence of the intention of the assessors, as inadmissible, there is no satisfactory proof that the tax has been abated to the defendant, Weston. The order was not drawn in his favor, but in favor of the collector. The object was to release th.e collector from his liability to account to the treasurer for certain taxes, and to give him a credit for certain other demands, which he appears to have had against the town. The term abatement, found in such an instrument between him and them, does not prove more than an incorrect use of the word. It would be singularly used, if it were intended by it to discharge Weston from the costs of commitment. The word taxes, instead of abatements, might have more clearly expressed their intention, that the order should authorize the treasurer to allow him those taxes and demands in a settlement, leaving the taxes to be adjusted with the persons taxed, as should be thought proper. The defendant, Weston, does not appear to have had any interest in, or connection with that transaction. To this construction it is objected, that the town only could have discharged the collector from the payment of W eston’s taxes, because he was not-committed within a year. The section of the act relied upon, c. 116, § 54, applies- to cases, where the person committed was discharged from imprisonment by taking the poor debtor’s oath, and not to cases like the present. The risk of the inability of the person taxed to pay, was thought to rest properly upon the collector if he did not collect or commit within a year unless the town itself should vote to discharge him.

Judgment for the plaintiff.