Lord v. Lancey

21 Me. 468 | Me. | 1842

The opinion of the Court was by

Shepley J.

— The bond of a collector of taxes was formerly required to be made to the treasurer of the town. St. 1821, c. 116, § 23. The act of the 15th of March, 1836, c. 212, provided, that all bonds to be given by collectors of taxes should be given to the inhabitants of the towns, parishes, or plantations, for which they were chosen or appointed. The bond in suit was made by a collector of taxes and his sureties on the twenty-first day of July, 1836, to Ford Whitman, treasurer of the city of Bangor, to be paid to him or his successors in office. If the act of 1836 embraces cities, this bond should not have been made to the treasurer, but to the inhabitants. The act incorporating the city of Bangor, special laws, c. 436, >§. 5, provides, that “ all taxes shall be assessed and apportioned and collected in the manner prescribed by the laws of this State relative to town taxesalthough the city may establish further and additional provisions on that subject. As the duties of a collector of taxes in the city are the same’, in the absence of any further provisions, as those of a collector of town taxes, the security to be required of him would be the same, and it would seem must be made in the same manner. The city continues to be a town for all the purposes of taxation^ and collection, although under another name and with different powers for certain purposes. There can be little doubt, that it was the intention to make a change in the mode of making the bonds in all cases, where they were required of collectors of faxes; and apparently for the purpose of making an explicit provision for their approval by the proper officers of the towns, parishes, and plantations. The bond in this case must therefore be considered as erroneously made to the treasurer. It may nevertheless be a good bond at common law. Winthrop v. Dockendorff, 3 Greenl. 156; Kavanagh v. Saunders, 8 Greenl. 422; Horn v. Whittier, 6 N. H. R. 88 ; U. States v. Tingey, 5 Peters, 115. But the present plaintiff cannot maintain an action upon it. He is not a party to the contract, and has no interest in it. Nor can he claim to prosecute it as a trustee for others; for he is not, either by implication or by the provisions of any statute, appointed such trustee.' It is contended in argument, that the defendants oblige themselves to pay to the successor of the obligee, .that the plaintiff is such . successor, and that there is therefore a contract between these parties. But this reasoning presents only the common case of a bond made payable to a person named and his assigns, with the well settled doctrine, that the assignee cannot at law maintain an action upon it in his own name. He can only do so by the provision of some statute authorizing it. And the successor in office can maintain a suit on a bond made to his predecessor only in cases authorized by statute. The statutes in this State give such authority only in cases where the bond is made in conformity to the provisions of a statute. In the case of White, Judge, v. Quarles, 14 Mass. R. 451, the bond was made to Samuel Holton, a predecessor of the plaintiff in the office of Judge of Probate, and to his successors in office, and the decision was, that if not a probate , bond, the action was not. rightly brought in the name of the successor in office.

In the case of Stuart v. Lee, 8 Call, 421, the bond was made by the sheriff of a county and his sureties to Beverly Randolph as Governor, and his successors in office, when it should have been made to the justices of the county; and it was decided, that the plaintiff, being the successor of the Governor in office, could'not maintain the* action.

In the case of Calhoun, Judge, v. Lunsford, 4 Porter, 345, the bond was made by an assessor and collector of taxes to Richard S. Clinton, Judge, and his successors in office, when it should have been made to the Governor of the State and his successors in office; and it was decided, that the plaintiff, being the successor of Clinton, could not maintain the suit.

The default is to be taken off, and a new trial granted.