Town of Middlebury v. Nixon

| Vt. | Jan 15, 1828

Hutchinson J.

delivered the opinion of the court. The first objection taken to the declaration is, that it counts upon bonds, each of which was taken as security in two distinct offices; whereas, there should have been a separate bond in each case.

This objection supposes that the selectmen must have followed some statute in taking these bonds, if not in form, at least in substance. Hence, it is admitted, that such a bond as these would be good, if it appeared by the declaration that the town had agreed with Nixon to fill the offices of first constable and collector, acr , cording to the 6tk sec. of a stat. p. 411, of compiled laws ; that alluding to a condition uniting the obligations in both offices in one bond.

But this supposition cannot be correct. The statutes dictate what the substance of such bonds should be : but they prescribe no form. Nor do the)1' undertake to determine whether there shall or shall not be separate bonds, other than what is just mentioned. And if bonds are taken by the selectmen, who, in behalf of the town, have ah interest, and are taken so as to secure that interest, and contain nothing contrary to any law, and are given by the free act of the signers, such bonds are good. No person is injured by there being in one bond what might have composed two separaté bonds.- Moreover, by the 19th section of- the Stat. p. 414, .it is made the duty of the first constable to levy and collect all taxes committed to him. Hence, it would seem, that when no other collector is chosen, the first constable is ex officio collector. In which case there would be the same propriety "that all be included in one bond, as if he were agreed with to serve as collector also. Hence, the spirit ot the sixth section, on page 411, would sanction the bonds in question, if no agreement were made with Nixon to serve as collector.

The next objection tothe declaration is, that it does not set forth •a proceeding to procure an extent against the constable agreeably to tire provisions of the statute, f sec. 12, p. 405, j prior to this suit upon the bonds. We deem the proceeding to be unnecessary. That was the only prompt and effective remedy before the provision for taking bonds of the constables and collectors; and may now be resorted „to, if the town choose it; and tins is now the better way, whep there is no doubt of the ability of the collector to pay, arid prevent trouble to his bail. But the provision for ré-aquiring bonds furnishes a cumulative remedy. It is a later profusion than the other, and is placed by the statute as an independent remedy, when a resort to it is necessary. When there is a breach of 'such a bond, the remedy is complete, and the statute has pointed out no incipient steps to embarrass or protract this remedy; and none surely should be attached by construction merely, especially as such a course might operate to the injury of the bail, to whom, if they are ever to be called upon; it is a ■kindness to know it before their principal is wholly down its to property.

Again, it is objected that the declaration does not allege any demand before the bringing of the action. The said statute, (page' 405,) seems to imply that the demand, there spoken of, should precede the process to obtain an extent against the collector, as there specifically pointed out; but no statute, even by implication, requires such demand to precede the action upon the bond. This stands as at common law, which requires no such demand. ' ' '

All the objections to the declaration, which go to the whole ac- • tion, are overruled,- and the plaintiffs must have judgment.

Further objections to the assignment of the breaches, and affecting the amount of the recovery, remain to be disposed of.

The assignment of the breach of the first bond, vyith regard to the school-tax, is not well assigned. The liability'of a collector of' town-taxes,&c. is, that he shall “collect and pay over, by. such time, ‘ and to such persons, as he shall be directed in his warrant.”— Now, here is no averment of either the time for collection, nor of the person or persons to whom payment was to be made. Nor is this helped by any reference to the general law which points out those particulars. For nothing appears, what school tax was to be collected ; whether one to be assessed of course, or one voted by tire town; nor even whether it originated from any source which could give it validity.

Doolittle,, for ¡ilaintiffs. Starr, for defendant.

Neither is the breach with regard to the state-tax well assigned'. In this tax the town have no interest, except as they stand bail for their constable, and hold this bond for their indemnity. As to the plaintiffs, and in relation to this tax, it is technically an indemnifying bond. The declaration should, therefore, aver payment to the State’s Treasurer by the town, so as to discharge the tax wholly; otherwise, it might stand good against the constable himself, or might be in a train of collection against the sheriff or high-bailiff on extents, and be in fact collected, and the town saved harmless, while they are collecting on this bond ; and the constable would still be liable on the original extent against him, till the tax was actually paid. In the assessment of damages, therefore, neither-the school-tax, nor the stateLtax must be included.

There is no such exception to the assignment of the breaches with regard to the town-taxes. The times of voting of diese taxes by ‘the town, the sums, the times the taxes are to be collected, and person or officer to whom payable, the times of delivering rate-bills and warrants, are all specifically set forth. For these amounts, so far as not paid over, die plaintiffs must have judgment.