Henry v. Tilson

The opinion of the court was delivered by Hall, J.

Several objections have been made to the verdict in this case; only one of which has been considered by the court.

It appears from the bill of exceptions, that the defendant (in aid of the certificates of the collector upon the copies of his warrants lodged with the jailor) was permitted to introduce parol evidence, to. prove that before arresting the body of the plaintiff the defendant had given him six days notice of the amount of his tax, and of the time and place when and where he would attend to receive it; and also, that the defendant had just reason to apprehend, that the plaintiff was about removing out of the town. But the existence of one or the other of these facts was necessary, to justify the collector in arresting the body of the plaintiff; (Rev. St. ch. 77, sec. 2 ;) and the question that arises is, whether these facts must appear in the certificates of the collector upon the jail copies, or whether they may be shown by other evidence.

To sustain the ruling of the court the counsel for the defendant rely upon the case of Hathaway v. Goodrich, 5 Vt. 65 ; where it was held,'that other evidence than the certificate made by a collector upon his warrant, of a seizure and sale of personal property for taxes, might be properly given to the jury. But the decision in that case is put on the ground, that, as the collector was- not required by law to make any return of his proceedings on the sale of personal property, his certificate would not be an official act, and consequently no *450 evidence of his proceedings; and the distinction is taken between such a proceeding of a collector, where no certificate of his doings was required, and the return of an officer upon a process made in obedience to the requisitions of law. If such return had been required by law, it was conceded, that'parol evidence would have been inadmissible, to prove the facts which, should have appeared by the return.

By sea. 10 of chap, 77 of the Revised Statuses it is provided, that, when any person shall be committed for taxes, “ the constable shall leave with the keeper of the jail an attested copy of his warrant, and shall certify his doings thereon in relation to such delinquent The collector, in this case, being required .by law to certify his doings upon the jail copies, it would seem to follow, in conformity with the reasoning of the court in Hathaway v. Goodrich , and in accordance with acknowledged rules of evidence in analogous cases, that his certificate of his doings as a public officer should' constitute the proper evidence of his proceedings-, and that such proceedings should not have been allowed to be shown by other proof.

If the facts necessary to the justification of the collector in arresting the body of the plaintiff sufficiently appeared in his certificates upon the jail1 copies, possibly the error in the admission of parol evidence might be disregarded, as being immaterial to the issue. But, on looking into the certificates, they are found to be deficient in that arespect. None of them mention any thing in regard to the apprehension of the collector that the plaintiff was about removing from the town ; but they all state, nearly in the same words, that, “ after legally notifying him, of the time and place when, and where the collector would be to receive the tax,” and no goods, &c., being shown to him, or found, he arrested the body, &c. This general statement, that the collector had given the plaintiff legal notice, we think insufficient, to show that he had given him the six days notice required by law. It is recognized by the court, in Briggs v. Whipple, 7 Vt. 18 , as a well’ established principle, that a general allegation,, by a collector, that ho had proceeded according to law, would be insufficient, where any statement of his proceedings was necessary. It seems, indeed, to be well settled, that public ministerial officers must set forth the- acts done by them, that the court, and not themselves, may judge of their sufficiency. Perry v. Dover, 12 Pick. *451 206 . Purrington v. Loring, 7 Mass 392. Wellington v. Gale, 13 Mass. 483 .

The statute making it the duty of the collector to certify on the copy of his warrant, lodged with the jailor, “his doings in relation to the delinquent ” tax payer, we think his certificate should contain all the facts necessary to justify him in making the arrest and commitment. In this case, such facts not being certified, the judgment of the county court is set aside and a new trial granted.