Spear v. Tilson

24 Vt. 420 | Vt. | 1852

The opinion of the court was delivered by

Isham, J.

In this case, several questions have arisen under the general issue and notice, and a more difficult one, under the plea of the statute of limitations. The action is trespass for taking the plaintiff’s mare, and was commenced on the 18th day of March, 1850, the same day the property was taken. The defense, under the general issue and notice, consists in having taken the property by the defendant, as collector of taxes by virtue of a warrant therefor. The proceedings of the collector and the legality of the tax, are to be taken as correct and legal, unless for causes urged, they are found otherwise.

The neglect of the constable to make a return in writing, of his proceedings on his warrant, with his certificate, and deliver the same to the plaintiff as requested, can have no effect to charge him in this action as a trespasser ah initio.

In no sense could such a return be considered as an official act. There is no statute requiring such return to be made or copy to be delivered, except when the delinquent is committed to jail, in which case a copy of the warrant, and his doings thereon, is required to be left with the keeper of the jail. In all other cases, his proceedings may be proved by parol, when necessary in his justification. This, of necessity, arises from the fact, that if he had made his return, it would not, for any purpose in his justification, be even prima facie evidence of the facts there stated. Hathaway v. Goodrich, 5 Vt. 65.

The Comp. St. 464 Sec. 13, requires the officer, after such sale, to return the overplus, if any there be, to the former owner on demand and also to furnish him an account of such tax and cost. It is stated in the report, that on the day of sale the defendant gave to Samuel Spear, a person whom the referee has found to be the agent of the plaintiff for that purpose, an account in writing, of the tax, costs and commissions, and accounted fully with him on that occasion for the proceeds of that sale. This was a full compliance with his duties, as required by that section of the act. Independent of this consideration the case does not show that he was ever requested to deliver this account, and it is only upon such request the duty arises. The agent did request a copy of the collector’s return on the warrant, but this he was not bound to make or deliver.

Equally unavailing is the objection that the grand list of 1840, was not sworn to by the listers, or that parol evidence was introduced of the certificate of the listers, when it was lodged with the town clerk. There was no statute requiring the grand list to be sworn to by the listers, until the year 1841. And whenever it becomes necessary to prove the existence or contents of the grand list in case of its destruction or loss, we entertain no doubt that the fact may be shown by parol proof.

The objection that the sale was adjourned by the collector, from the 5th of February to the 18th of March, 1844, must also be overruled. The Stat. p. 464 Sec. 12, specifies the time within which it shall not be sold, and this for the benefit of the delinquent, to enable him to redeem the property, by the payment of the tax. Beyond that time, the right and power of adjournment rests in the exercise of a sound discretion of the collector. Such an adjournment may be necessary for the want of bidders, or to prevent the property from being sacrificed. And the right to the exercise of that power is the same as that of any officer having property attached on execution. Tomlinson v. Wheeler, 1 Aik. Rep. 194. 15 Vt. 211. It may be exercised to such an extent as to make him liable for neglect. But he would not thereby become a trespasser db initio. The defense is sustained under the general issue and notice. This renders it unnecessary to decide the question arising under the plea of the statute of limitations, or the propriety of filing that plea, after a special notice under the general issue.

The judgment of the county court must be affirmed.