Bosworth v. Bancroft

• Decision Date: 21 August 1902
• Court: Vermont Supreme Court
• Parties: BOSWORTH v. BANCROFT.

52 A. 1050

74 Vt. 451

BOSWORTH

v. BANCROFT.

Supreme Court of Vermont. Washington.

Aug. 21, 1902.

Exceptions from Washington county court; Start, Judge.

Action by S. H. O. Bosworth against Charles DeF. Bancroft. From a judgment for defendant, plaintiff brings exceptions. Reversed.

T. J. Deavitt and Edward H. Deavitt, for plaintiff.

Frederick P. Carlton, for defendant.

ROWELL, C. J. The first two counts are in case, and alleged that the defendant, as tax collector of the city of Montpelier, had in his hands for collection a tax against the plaintiff, and a tax bill and warrant, good in form, but bad in substance, because the tax was illegally assessed, and that he distrained three shares of plaintiff's bank stock, and wrongfully sold the same to satisfy the tax. The third count is trover for the same stock. The plea is the general issue. The plaintiff proved that he owned the stock at the time in question, and it was conceded that the defendant distrained and sold the same, as alleged, and that thereby the plaintiff's title thereto was devested. The plaintiff offered no evidence that the tax was illegal; and when he rested, the court directed a verdict for the defendant, and rendered judgment thereon, and the question is whether that was error.

In actions of tort, the plaintiff must show that the defendant has committed an act which, in the absence of excuse or justification, constitutes in law a tort to him, and he need show no more, though more be alleged. If facts exist that justify or even excuse the defendant's act, though they show that he has committed no tort, they constitute an affirmative defense, and must be alleged and proved by the defendant. But the mere form of a plea, though correctly drawn, is not decisive of whether the defense is affirmative or negative, and the general issue in most actions is no guide at all, though it may be regarded as alleging everything that can be shown under it; for the question is one of principle, and the test is the burden of proof, —the duty of establishing. Thayer, Ev. 370, 371, and note 2, at page 374; Hutchinson v. Granger, 13 Vt. 386, 393. Now nothing is better settled in the law of this state than that a tax bill and warrant, though regular on their face, do not, of themselves, justify the collector in enforcing them, but that the legality of all previous steps must be shown. This being so, the allegations in the first two counts, that the tax bill and warrant are bad in fact, go for nothing;...