36 Vt. 329 | Vt. | 1863
The defendants rely upon two distinct grounds of defence against the note declared on in this suit. This note was given on the settlement of a claim, in favor of the town of Lyndon against Philotus M. Willmarth, who was the first con-, stable and collector of taxes for that town elected" at the annual town meeting in March,’ 1860, by the sureties on his official bond for that year, for the balance of the town tax of that town on the.list for that year, which Willmarth had neglected to pay into the treasury of the town as .required by law.
I. It is claimed that the sureties of Willmarth on his official bond, of whom the defendant Miller was one, were discharged from liability on the bond in consequence of the neglect of Willmarth to take the oath faithfully to discharge the duties of his office as required by law, — the fact appearing that he did not take this oath at any time after his election as first constable at the annual town meeting in March, 1860. It is admitted that Willmarth was duly elected to this office, and, during his official year, acted as the first constable and collector of taxes of that town in fact. It is a settled principle -that as he held the office by color of title, his acts, as an officer de facto, were valid so far
II. It appears that Willmarth had been the first constable and collector of taxes of the town of Lyndon for several years preceding 1861, and, when the town tax on the list of 1860 was committed to him for collection, he was in arrear upon the taxes
Both of the grounds of defence relied upon by the defendants being, in our judgment, untenable, we do not find it necessary to consider the question whether, if tenable in respect to the original liability of the sureties on the bond, they would now be available as a defence to a suit upon a note given in settlement of that alleged liability.
The judgment of the county court for 'the plaintiff is affirmed.