| Conn. | Jul 15, 1829
The defendants urge several objections to the bill. They will now be examined and disposed of.
I. It is said, this tax was illegal: — it could not have been laid on the list of 1823 ; for the list of that year was not, and could not by law be, perfected, till several months after the tax was laid. The statute (p. 411 — 5.) provides, that the taxable inhabitants shall give in to the assessors, by the 20th of October in each year, a correct list of all their property subject to taxation. The assessors may add such assessments to the lists as they judge proper. The board of relief, in January following, may add to or reduce the list of any person. After this, the general list of each town (p. 449 — 450.) is to be transmitted to the comptroller, who, with the treasurer, in March following, may, on examination, add to or deduct therefrom such sums per cent, as they may judge will equalize the same, when compared with the valuation in other towns; and by the 10th of April thereafter, notify the clerks of the respective towns of such alterations. The town-clerk may then alter the list, within twenty days, and deduct from or add to it, according to the opinion of the comptroller and treasurer. This process with respect to the list, furnishes the ground for the supposition, that the tax was illegal; for it does not appear, that the list was perfected when the tax was imposed. It does, however, appear, that the rate-bill was made out in August 1824, after the process for correcting the list was completed.
Stress, however, is laid on the 14th section of the act for the assessment of taxes, (p. 450.) which declares, in substance, that the assessment list of each town, as the same shall be made and corrected by the assessors and board of relief, shall be the rule of apportionment of all taxes. ~ I believe, in some cases, the tax is laid on the list last perfected; but I do not see the reason of it. Taxes are laid for the current expenses of the year. The basis of them should be, therefore, the taxable estate of the year. This idea is enforced, by the 9th section of the “ act concerning towns.” (P.450.) This section provides, that the towns shall grant annual taxes on the assessment list made out according to law, sufficient to defray all
It is still insisted, that as the legislature, in May, 1826, (Slat, vol. 2. p. 487.) enacted, that towns, at their annual meetings, might grant taxes on the assessment list, which should next thereafter be completed by the assessors; and also, in May 1828, vested ecclesiastical societies with the same power ; it is to be inferred, that taxes could not be laid in this manner before. It would be unsafe to proceed upon this'idea. The statute might have been made in affirmance of the existing usage, and to prevent all objection to it. If doubts existed, it was proper they should be removed.
Moreover, these taxes might have been granted at the annual town meetings in October, before the lists were presented to the assessors.
Hence, in my judgment, the tax was legally imposed ; and this opinion supersedes the necessity of examining a position taken at the bar, that if the tax was illegal, yet as the collector had received the amount, neither he nor his surety can allege this objection.
2. The defendants further insist, that the select-men should have been parties, as they were obligees in the instrument, and not the town. It is clear, that the town is the sole party in interest. The select-men were merely agents. If a loss is incurred, it must be borne by the town, and not by the select-men. The undisputed rule in equity, is, that all persons concerned, or who may be affected by the relief prayed for, ought to be parties. Mitf. 39.
3. The collector is not required to give a bond ; nor are the select-men authorized to take such bond. There is,indeed, no law directing that a bond shall be taken in such case ; nor is there any law against it. It is not illegal in its nature, nor founded upon any illegal consideration.
These remarks dispose of another objection, suggested, by the counsel for the defendants, that this voluntary agreement ought not to be enforced, by a court of chancery. The obvious answer is, the instrument is not voluntary. It is founded upon a sufficient consideration. More especially, ought this agreement to be enforced, as the surety is fully indemnified against all loss.
4. The remaining objection is, that the plaintiffs have adequate remedy at lawv It is one of the established powers of a court of equity to relieve against mistake and accident. It is found by the court, that the seal was omitted, in this case, by mere mistake and accident. If the plaintiffs might sue on this instrument at law, it does not follow, that they may not have relief in equity. The plaintiffs are entitled to a bond, the consideration of which cannot be enquired into at law. The remedy might not be adequate. In this stage of the proceedings, therefore, I incline against this objection.
The plaintiffs, then, are entitled to the relief sought, if it be competent to a court of chancery to afford it. That it is competent to relieve against mistakes in deeds, bonds, &c. is abundantly etablished in our own courts ; and it is a settled rule in chancery. Crosby v. Middleton & al. Prec. in Chan. 309. Skip. v. Huey & al. 3 Atk. 93. Wadsworth v. Wendell & al. 5 Johns. Chan. Rep. 224.—a case identical with the present. Smith v. Chapman & al. 4 Conn. Rep. 344.346. Watson & al. v. Wells, 5 Conn. Rep. 468. Peters & al. v. Goodrich, 3 Conn. Rep. 146.
I would advise the superior court to grant the relief sought.
Relief sought to be decreed.