Summary
This was an action brought in the county court upon a bond executed by the defendants to the selectmen of the town of Charlotte, naming them, conditioned as follows:
“ The condition of the above obligation is such, that whereas the above named Aaron B. Webb has this day, by the inhabitants of said town of Charlotte, in legal meeting, been duly chosen first constable and collector of town taxes in said town for the year ensuing now in case the said Aaron B. shall well and truly execute and discharge the duties of his said offices respectively, and every part thereof, and save the inhabitants of said town, and all others concerned, free from any loss or damage in consequence of any misfortune, malfeasance, or nonfeasance, in the duties of said offices ; then this obligation is to be null and void, otherwise to be and remain in full force and virtue.”
The breaches assigned’correspond with the pleas in bar.
The first plea of the defendants was in abatement, and states in substance, that the writ was served by Budsey Newell, being an inhabitant of said town of Charlotte, and interested in the suit. To this plea the plaintiffs demurred specially, and assigned the following causes:
1. In the said plea the defendants make full defence, and that a plea of abatement is not good after full defence.
2. There is no prayer of judgment of the said writ.
3. It is not stated in said plea, in what manner nor by whom said writ is served.
4. It is not stated that the said Newell was interested.
5. The said plea is argumentative and uncertain.
6. The defendants, in conclusion, merely pray judgment, that the defendants may be-.
Joinder by defendants. — The demurrer prevailed.
The next plea was the general issue, and then the following special pleas in bar.
1. That the inhabitants of Charlotte did not, at their annual March meeting, vote a tax of three cents on the list of the polls and rateable property of the inhabitants of said town, for the purpose of paying town charges and expenses,
2. That neither the select men of said town of Charlotte, nor any person in their behalf, did. make out and deliver to the said Aaron B. during the term he was so elected first constable and collector of town taxes of said town of Charlotte, as the plaintiffs in their declaration have alleged, any rate or tax-bill against the inhabitants of said town of Charlotte, assessed on the list of the polls and rateable estate of said town of Charlotte, for the year 1827, or any warrant whatever for the collection of such supposed tax-bill.
3. That neither the selectmen of said town of Charlotte, or any one in their behalf, did during the time the said Aaron B. Webb was so elected constable and collector aforesaid, deliver any tax-bill whatsoever against the inhabitants of said town of Charlotte, for a state tax oii said town of two cents and five mills on the dollar, on the list of the polls and rateable estate of the inhabitants of said town of Charlotte, for the year 1828.
Upon these issues a verdict was returned for the plaintiffs, and the cause came here upon the following bill of exceptions.
This was an action of debt on bond, executed by the defendants to the selectmen of the town of Charlotte, conditioned that the said A. B. Webb should faithfully discharge the duties of first constable and collector of taxes for said town. ■
The plaintiffs, in support of the issue on their part, offered in evidence the bond declared upon; to which the defendants objected, but the objection was overruled and the bond admitted. To which defendants excepted.
The plaintiffs, in further support of the issue on their part, offered in evidence a copy of the proceedings of their town meeting in March, 1828; to which defendants objected. The objection was overruled and the copy admitted. To which defendants excepted.
The plaintiffs, in further support of their issue, offered in evidence a receipt, signed by said Webb, in the words following, viz.
“ Received of the selectmen, in the year 1828, a town tax-bill, amounting to four hundred and seventy-five dollars and thirty-two cents, to collect and account for according to law.
Signed, A. B. WEBB, Collector.”
On the back of said receipt, the following endorsements were ° made:
« Received 14th Oct. 1829, by the hand of Lyman, $20,00. Received, Charlotte, 9th March, 1829, on the within receipt, $144, 18. Received 13th May, 1829, $45 50. Received, March 10th, 1831, $9 81, on an order in the hands of J. D. Farnsworth. Received, May 4th, 1831, $24 '61, endorsed oh two orders received by N.-Lovely.”
To the admission of this receipt the defendants objected, but the objection was overruled and the receipt admitted. Defendants excepted.
The plaintiffs, in further support of their issue, offered in evidence an extent, issued by the treasurer of the state against the inhabitants of said Charlotte, on the first day of January, A. D. 1831; to which the defendants objected, because it did not appear that any extent had previously issued against said constable; but this objection was overruled and the extent admitted, although the defendants urged further objections to its admission as evidence in the case. It appeared that the extent had been paid by plaintiffs.
The plaintiffs, in further .support of their said issue, read in evidence a warrant for the collection of state taxes, issued by the treasurer of the state on the third of November, 1828, directed to A. B. Webb as first constable of said town of Charlotte.
J. D.'Farnsworth was then called as a witness by plaintiffs, and testified that he made out a rate-bill for the state tax, certified and signed it, and handed it to A. B. Webb, who said he would procure the names of the other selectmen to it; but witness did not know that any other selectman signed it. Charles Grant, J. D. Farnsworth, and Nathaniel Newell, were the selectmen, of Charlotte in the year 1828. No testimony was adduced tending to prove that Webb" had collected any more taxes than what he had paid over and procured endorsed on his receipt.
Here the plaintiffs rested their case.
The defendants then contended, that the plaintiffs, upon their own showing, were not entitled to recover; and requested the court so to decide, but the court refused.
The defendants, in support of the issue on their part, called J. D. Farnsworth, who testified that he took the receipt before mentioned from the constable for the rate-bill; that the selectmen made out no rate-bill for the town tax in 1828, and that none was delivered to Webb by the selectmen; but Webb had a state tax-bill of three cents on the dollar, the amount of the town tax, and he had carried out the amount of the town tax for 1828 in a column of figures, and that he added it up and found it correct, and certified it, and he had no knowledge that either of the other selectmen ever saw it. He further testified, that at the time he took the receipt aforesaid, he made out a warrant for Webb, for the collection of said tax, but did not procure it signed by a justice of the peace'. Webb took it, and said he would procure it signed, but witness did not know whether Webb ever did procure it signed.
The defendants, in further support of the issue on their part, produced the rate-bill for the state tax, certified by the said J. D. Farnsworth, and having upon it the name of Charles Grant, as one of the selectmen, above the name of the said Joseph D., selectman.
Charles Grant was then called a witness by the defendants, arid testified that he did not sign it at the time it was made out, but could not tell when he did sign it — thought he did not sign it until after Nathaniel Newell sued Webb for taking his oxen, which was in 1830. On cross-examination, he said his impression was, he signed the rate-bill before Webb went off, which was proved to be in 1829.
The testimony here closed.
The defendants requested the court to charge the jury as follows :
1. That the plaintiffs cannot recover upon the bond against Webb and his surety, for not collecting and paying over the state tax, unless they prove that a rate-bill was made out by the selectmen for that tax, in due form of law, and certified by a majority of them, as the state tax, and delivered to Webb in due season, so that he could legally collect said tax.
2. That the plaintiffs cannot recover in this action the amount of the town tax of the defendant, unless they prove that the selectmen of said Charlotte, in due season, made out a regular rate-bill of that tax, and that the same was duly certified by a majority of them, and that they procured from a justice of the peace a legal warrant for the collection of said tax, and that they, or some of them, delivered said rate-bill and warrant to the said Webb in due season for collection.
3. That the plaintiffs can only recover nominal damages, unless they prove that the said Webb collected more money on said tax-bills than he paid over; for if Webb did not collect the tax of the inhabitants of said Charlotte, they ought not to recover of him and his bail.
That if the iury find that no rate-bill was made out by the J , .. r . . .. . selectmen, and certified by a majority oí them, and delivered to tjle constable, Webb, with a legal warrant authorizing him to collect t]10 town tax, the plaintiff cannot recover. The fact, that Webb himself, from his old state tax bill, made out the amount of the town taxes, and submitted it to J. D. Farnsworth, one of the selectmen, who added it up'and found the amount correct, without certifying it as a regular tax-bill, will not entitle the plaintiffs to recover the town tax.
The court refused to charge the jury as requested by the counsel for the defendants, and among other things charged the jury, that the receipt of the constable, acknowledging the receipt of a rate-bill, was, in the absence of proof to the contrary, evidence that it was a legal one, duly certified by the selectmen, according to law; and that the evidence of Grant, as to when he signed it was loose and unsatisfactory. It was not necessary that the selectmen should procure a warrant signed by a justice of the peace, before they handed it over to the constable. The signature of the justice could be procured by the constable at any time; and if the jury find that Webb, the constable, took the warrant before it was signed, with an understanding that he was to procure some justice to sign it, the legal presumption is, that he did procure it signed in season to enable him to collect the tax. As it respects the state tax, the court say, if the jury find that J. D. Farnsworth, one of the selectmen, made a rate-bill and signed it, and delivered it to Webb, the constable, with the understanding that he was to procure the signatures of the other selectmen, the legal presumption is, that he immediately procured the name of Grant, the other selectman, to said rate-bill; and Webb ought not, at this late day, to be allowed to say it was not signed in due season by Grant, the other selectman, without satisfactory proof. And if the jury find that it was signed by Grant, the other selectman, in due season to avail the constable, the plaintiffs are entitled to recover.
To this charge the defendants excepted. The jury returned a verdict for the plaintiff. Exceptions were allowed and certified.
— On the plea of abatement, the first question is, whether it was good in substance; secondly, whether it was pleaded in good form; thirdly, if not formally well pleaded, whether the court ought, ex officio, from the matter before them, in the manner it was made known, to have quashed the writ.
1. The substance of the plea. The town of Charlotte are plaintiffs in the suit. The writ is directed to and service made by a member of the corporation. He was both a party and in interest, and by express provisions of the statute, is prohibited serving the writ. — Stat. p. 64. The statute is imperative and the law is founded in sound policy.
The plea then being good in substance, the next inquiry regards its form. We contend the matter is well pleaded. Anciently great strictness was required in pleas of abatement, but the rule in modern times is relaxed, and the certainty formerly required is now dispensed with. The court now puts a common sense construction upon them. The beginning and conclusion of the plea both denote it to be in abatement, and both pray that the plaintiff’s writ may be quashed ; and the body of the plea assigns the cause with all reasonable certainty. The kind of service made by the officer need not have been set forth, as the objection is to the power of the officer to make any service at all. If he had power to make service in one way and not in another, there would be force in the objection ; but having no power, it is immaterial how he attempted to serve the writ. The objection that the defendant makes full defence is of no importance. The “ &c.” now implies full or half defence, according to the subject matter of the plea. — Gould on Pleading, 31, 32. 8 Term Reports, 633. 2 Saund, 209, c. (n.) Law. PI. 92.
The plea was good as a motion, and it was the duty of the court to have dismissed the suit on motion, though a parol one. The following authorities fully sustain our position, and, moreover, establish the position, that even if the defendants plead an insufficient plea in abatement, which is overruled on demurrer, still the court will, ex officio, dismiss the suit, and are bound to do so.— 11 Mass. Rep. 343. Gage vs. Gajfman, 11 Mass. Rep. 182. 14 Mass. Rep. 132 — 5 do. 362. 6 Peck, 271. Story PI. 24, 25. 5 Conn. Rep. 140. Essex vs. Holmes, 6 Vt. Rep. 47. 10 Mass. Rep. 176.
The plaintiff cannot insist, that it could not appear to the court that the officer, who attempted to execute the writ was a party and in interest. The writ was directed to the constable of Charlotte, the service was made by the constable, and if made by any other constable, it was certainly void. The law provides that constables shall be inhabitants and freeholders of their respective towns. The question, whether legal constable or not, cannot be controverted in this case; and the plaintiffs having created him constable, the presumption is that he is a legal one, and they would be estopped denying it.
The bond was void on the face of it, and ought not to have been admitted as evidence. It was an official bond, and .consequently, if the condition contained any tiling not authorized by statute, not only such part of the condition is void, but the whole bond. — Lyon vs. Me, 1 D. Chip. Rep. 46.
The statute makes the towns responsible for the neglect or default of the constable. — Stat. p. 420.
The town had no right to take a bond from the constable, with a condition extending further than they can be made liable. The condition of the bond extends further than the one prescribed by statute. — Stat. p. 420. No other person, however much he might suffer by Webb’s official conduct, has any remedy against the town, except it was through the neglect or default of Webb. Suppose a constable were to serve process after the return day had expired, or to take property of A on gp execution against B, is the town responsible to the defendant in the process in the first instance or to A in the second ?
Again : The bond should either have been taken to the town, or to the selectmen.by the name of the office, not in the names of the individuals exercising the office. — Stat. 420.
But if the bond may be considered good, taken to the selectmen, in the names of the persons exercising the office, the suit should be in their names. The legal interest resides in them, and the persons beneficially interested cannot sue. — Ham. Par. 11, 33,313, 314. 10 Mod. 280. 2 Cranch, 308, 302.
There are cases of parol. simple contracts, where the person beneficially interested may sue; but never in cases of deeds. Neither can he sue, though the obligee has made an express promise to him.. His remedy is of a higher nature, to wit, upon the bond in the name of the obligee.
The addition of “selectmen, &c.” does not assist the plaintiff. It is a mere discriptio persones. — 6 East. 110. 9 John. 335. 8 Mass. 103.
This action on a bond so executed is not given to the plaintiff by the act of Nov. 6, 1817, Stat. 159. The act contemplates actions founded upon statutes, and where the pleader must necessarily count upon the statute. The right to take the bond is given by the statute, but the action is not founded upon the statute more than action in favor of endorsee against endorser is.
The receipt of the constable was improperly admitted in evidence. If Webb bad been sued alone, or they had been both joint principals, the rule might have been different. The admission of the deputy relative to his official acts binds the sheriff, because, say the authorities, he is a mere servant, and the sheriff has his bond to indemnify him. But Newell was only liable on Webb’s default. To admit the admission of the principal to charge the surety, is placing the surety entirely in the hands of a dishonest principal, and opens a wide door for collusion between, third persons and the principal to destroy the surety. A claim against a surety is always a matter of strict right on the part of the person making it. Equity is on the side of the surety. It has been decided, that the admission of the principal, in a good bond, that he had broken it, is not evidence against the surety. — Swift’s Ev. 128. Phoenix vs. Pay, 5 John. 412. Abel vs. Torgue, 1 Root. 502. BostwicTc vs. Lewis, 1 Day, 33. State Bank vs. Johns, 1 Conn. Rep. 404. Walker vs. Dubeney, l Marshall.
The treasurer’s extent ‘ was not admissible, without first laying the foundation for it, by showing that he had previously issued one against the constable, and the sheriff had returned it non est in-ventus. — Stat. 403, 404.
The plaintiff’s evidence did not support the issue on the third and fourth pleas in bar, and the charge of the court relative to what evidence would support the issue on the above pleas, was clearly wrong. In the third plea, the issue was, whether the plaintiffs did deliver the warrant and rate-bill they averred they did in their declaration; and on the fourth plea, whether they delivered a rate-bill for the collection of the state tax. The proof was in excuse for not doing it, to wit, that the officer agreed to get them himself. This was not proving the point jn issue, and the court ought so to have told the jury.
Again: The court ought to have charged the jury, that the rate-bills should have been signed by all, or at least a majority of the selectmen. — Townsend vs. Gray, 1 D. Chip. 127.
The court erred in instructing the jury that Webb got the other selectmen to sign the rate-bills and the warrant. The only ground for the presumption was, that Farnsworth swore he agreed to it. A presumption is an inference from facts proved that other facts do exist, and results from their connection with each other. — Sw. Ev. 136. Here was no ground for the presumption. It might as well be presumed a note was paid when it fell due, because the party had promised to pay it. The fact was capable of positive proof, and in such cases, if the party chooses to rely upon presumptive proof, he is not entitled to recover. — Swift’s Ev. 138.-The selectmen of 1828 were all examined, and denied signing the bills of 1828, or during the time Webb was elected constable; the contrary could not be presumed.
The charge relative to Grant’s testimony was wrong, and misled the jury. Though his testimony was unsatisfactory, as to the precise moment when he signed the bill, it fully appeared by his testimony that he did not sign it until after the-year had expired that Webb was elected constable.
The admission of the evidence relative to Webb’s agreement to get the warrant and rate-bill signed, and the charge of the court on the several points in reference thereto, were wholly wrong, considering Newell was but a surety. He was only liable in case Webb made default, and being surety, plaintiffs must show a full and literal performance on their part to hold him. The plaintiff’s duties are prescribed by law, entered into the contemplation of the parties when the bond was signed, and if by any act of theirs his risk has been increased, he is discharged.
The court ought to have charged the jury to find only nominal damages under the evidence. It did not appear that the rate-bills have ever been collected. They belong to the town, and the town is authorized to collect them. The surety has no such right.
— 1. As to the plea in abatement.
(1.) Pleas in abatement, as they delay the trial of the merits, are not regarded by courts, and the greatest accuracy and precision are required.' — 1 Chit. PI. 443. Law. PL 107.
(2.) In this plea defendants have made what is called full de-fence, and it is a rule in pleading, that defendant cannot plead in abatement after full defence. — 1 Chit. 414. 1 Tidd, 560. Law. 92.
(3.) There must be a prayer of judgment. — 3 Bl. Com. 303. 1 Chit. 451. Law. 107-9. 2 Saund. 209.
In this case defendants say the writ ought to abate, but do not pray judgment of it.
(4.) The interest of the constable is an inference of law, growing out of certain facts, which facts should be stated so that they might be traversed. He was not necessarily interested by being an inhabitant, for he might have no list or rateable property.
(5.) The constable is not necessarily an inhabitant. There is no law requiring it, and from the authority given to towns, to agree with some suitable person, it is rather to be inferred that his residence might be immaterial. — Stat 411, sec. 6.
(6.) If the constable was an inhabitant and interested, the facts should have been pleaded in such a way that plaintiffs could have traversed them. But in this case they are not asserted nor alluded to, except argumentatively.
2. As to the pleas in bar.
(1.) On the first issue of non est factum, it is not perceived that any question can arise, the bond being in due form.
(2.) The same remark may be made as to the second issue.
(3.) As to the third issue, we contend that the rate-bill was a legal bill. It contained the names of all the inhabitants, with the sums in which they were assessed, with the proper certificate of the selectmen, as the constable received the rate-bill and warrant, and promised to get them signed. But the receipt is conclusive, and defendants are not at liberty to oppose it.
(4.) As to the fourth issue, it appeared by plaintiff’s showing, that they delivered Webb the treasurer’s warrant for the collection of the tax ; that Farnsworth, one of the selectmen made out a rate-bill and certified it; that Webb took it and promised to hand it to the other selectmen to sign; that an extent had been issued against the town, which they paid. On this evidence it is contended that the legal presumption is, that the rate-bill was signed by the other selectmen ; that whether signed or not, is of no importance, unless defendants show that some one refused to pay his tax; and in that event, it would be sufficient if plaintiffs procured the other selectmen to sign in time for the collection of the tax.
The showing on the part of the defendant, instead of rebutting the presumption, strongly corroborates it. The rate-bill, when produced had on it the names of Farnsworth and Grant; and the testimony of Grant clearly shows that it was signed in due season to avail Webb.-
The court correctly refused the motion for a non-suit, because the plaintiffs have made out their case, and because court will not order a non-suit against will of plaintiff — French vs. Smith, 4 Vt. Rep. 363.
Plaintiff’s right to damages is not to be limited to amount collected by constable.
It was not necessary to show the extent issued against the constable. The issuing of the extent is, quasi, a judicial act; and in favor of judicial proceedings, it is to be presumed they are founded on proper evidence. The extent against the town is, therefore, of itself, sufficient evidence that an extent had previously issued against the constable.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
