57 Me. 58 | Me. | 1869
Debt on two bonds of the collector of taxes for the years 1860 and 1861. The action was defaulted, and Frederick Fox, Esq., was appointed auditor to assess the damages. The presiding judge refused to allow the defendants’ request to have the damages assessed by a jury, and ordered the auditor’s report to be accepted. The defendants filed exceptions, alleging several grounds of complaint.
1. That the request for a jury to settle the damages ought to have been granted. Whatever may have been the right of the defendants to have the damages assessed by a jury, if they had seasonably applied therefor, they Avaived their right to a jury trial by neglecting to demand one until an auditor had been appointed, and had made his report. They cannot be permitted to have the double advantage of accepting a favorable report of an auditor, and
2. The defendants further allege that the bond of 1860, not having been approved in writing by the selectmen, is not a statute but a common-law bond, and, therefore, subject to a hearing, according to the actual damages. This bond, in terms, conforms to the requirements of the statute, was accepted by the selectmen, and both parties acted under it, as a statute bond. Under these circumstances, a default having been entered, we think the bond must be treated as a statute bond.
3. It is further objected, that the auditor improperly refused to allow the defendants a credit of $869.31. The burden was upon the defendants to show payment of this sum. The evidence was conflicting, and we think the charge was properly disallowed.
4. It is also argued that all uncollected taxes, which might have been collected, if the town had taken the proper steps to do so, are not collectable of the defendants. The powers conferred upon collectors of taxes for towns and cities, and their obligation to account for the several sums committed to them in their warrant to collect, arc clearly pointed out in the statute. He may distrain and sell the goods and chattels of a delinquent tax-payer, and for want thereof, he may arrest him and commit him to jail. He is commanded by his warrant to levy and collect of the several persons named in the list committed to him, each one his respective proportion therein set down, to pay the same to the town treasurer, and to make up an account of collections of the whole sum on or before a day stated. R. S. c. 6, § 79.
His official bond, also, binds him to'the faithful discharge of all these duties. R. S. c. 6, § 85. And he is answerable to the inhabitants in an action for all sums they are obliged to pay by means of his deficiency, and for all consequent damages. § 111.
The provisions for demanding the bills of a delinquent collector, and committing them to another collector, and for issuing a warrant of distress against him are not mandatory, but permissive; cumulative remedies to be resorted to or not, at the discretion of the municipal authorities. It is not for such delinquent collector to complain that he has not been dealt with in a more severe and summary manner. R. S. c. 6, §§ 103, 104, 121, and 122.
In general, a collector of taxes becomes chargeable for all taxes committed to him, in respect tó which he has not exhausted his authority to enforce payment during the period allotted for their collection, if the town insist upon Ids liability, and require payment from him. It is no defense to a suit on a collector’s bond for such delinquency, that the mdividuals against whom such taxes were assessed were not, at any time after the tax-bills were placed in his hands, of sufficient ability to pay the same, and that a levy of a warrant of distress upon them would have been unavailing. Colerain v. Bell et al., 9 Met. 503.
It does not appear that the collector took the necessary legal measures to enforce payment of the taxes with which he is charged, within the time mentioned in his warrant. They were, therefore, properly allowed against him by the auditor. The claim of the collector for commissions having been once paid, was rightfully disallowed. Exceptions overruled.
