Sprague v. Fletcher

67 Vt. 46 | Vt. | 1894

ROSS, C. J.

The contention is in regard to the sufficiency of the several counts in case, demurred to. I11 substance they are alike. The essential facts, admitted by the demurrer are, that the defendant was a collector of taxes, acting in that capacity, and pretended to hold a tax for collection against the plaintiff; that the plaintiff was the owner of bank stock of value, and that the defendant levied upon and sold the bank stock, without right, in satisfaction of the pretended tax. The allegation, “whereby the plaintiff was. divested of his title to the stock and wholly lost its. use and value,” is the conclusion of pleader.

To be justified it must be supported by sufficient, proper allegations, antecedently pleaded, so that the court can see that the conclusion of the pleader is one which the facts already set forth will uphold.

To support an action on the case the facts, well pleaded, must show an invasion of a legal right of the plaintiff, ■either with a proper allegation of injury, or the invasion of such a right that the law implies some resulting injury. Griffin v. Farewell, 20 Vt. 151 ; Troy v. Aiken, 46 Vt. 55. The right alleged to have been invaded was the plaintiff’s right in and to the shares of bank stock. This is an intangible right, incapable of manual possession, ft can be invaded, in-the collection of a tax, only in the manner prescribed by Sec. 2, of Act No. 11, of the Laws of 1882. This act requires that the collector, after duly advertising and selling the stock, shall leave with the clerk of the corporation a copy of his warrant with his return of his doings thereon, giving a description of the property distrained, and the character and amount of the tax. When the collector has done this, it is made the duty of the proper officer of the bank to transfer the stock to the purchaser, and issue to him a certificate thereof. If the allegations of the facts, well pleaded, show all this to have been done without right, they show such an invasion of the plaintiff’s right to the stock as will support an inference of loss by the plaintiff.

The allegation, that the defendant levied upon and sold the plaintiff’s stock without right, in satisfaction of the pretended tax, is sufficient to show that the collector did what the law requires to be done to make a levy and sale, if supported by an antecedent allegation that the defendant, in his capacity as collector, had in his hands for collection against the plaintiff a tax bill and warrant, legal in form, although invalid, because the tax was not legally assessed. The only allegation that the defendant as collector had in his possession for collection such a tax bill, with a proper warrant for its collection, is that as collector he '■'•pretended to hold a tax for collection against the plaintiff.” A pretence is a show, or a holding forth in form, something which does not, in fact, exist. This allegation then is, that the defendant claimed, or made a show of holding a tax for collection against the plaintiff, when he did not hold any, in fact. It falls short of alleging that he held against the plaintiff, for enforcement, a tax bill, with a warrant for its collection, in form regular and valid, but invalid for reasons which did not appear upon the face of the papers. Such a tax might possibly be characterized as a pretended tax. But an allegation that the defendant held a pretended tax is entirely different from the allegation that be pretended to hold a tax. A demurrer to the former would admit that he held a tax, in form, though claimed to be invalid; to the latter that he claimed, or made a show, of holding a tax which he did not hold. If by this allegation the pleader meant that the defendant held a pretended tax, it cannot be given that meaning, as the other is the proper one on the sentence as framed by the pleader, and his language must be taken most strongly against him. In this particular all the counts are lacking in substance.

Judgment reversed, demurrer sustained, counts adjudged insufficient, and cause remanded.