Inhabitants of Boothbay v. Giles

• Decision Date: 03 April 1878
• Citation: 68 Me. 160
• Parties: INHABITANTS OF BOOTHBAY v. BENJAMIN P. GILES et als.
• Court: Maine Supreme Court

68 Me. 160

INHABITANTS OF BOOTHBAY v. BENJAMIN P. GILES et als.

Supreme Judicial Court of Maine.

April 3, 1878

ON REPORT.

ASSUMPSIT against the defendant Giles, and two other defendants with him as co-promisors, for the faithful performance of his duties as collector of taxes for the year 1869. The instrument declared on was in form a statute bond but unsealed.

It was admitted that Giles collected, of the taxes of 1869 $9,295.45, and paid into the state, county and town treasury $7,386.32 prior to the date of the writ, and that he paid in no more on the tax of that year.

J Baker with H. Ingalls, for the plaintiffs.

A. P. Gould & J. E. Moore, for the defendants.

VIRGIN J.

At the annual meeting of the plaintiffs, held on March 8, 1869, the defendant, Benj. P. Giles, under a sufficient article in the warrant calling the meeting, (Deane v. Washburn, 17 Me. 100. Spear v. Robinson, 29 Me. 531) having been duly elected (Mussey v. White, 3 Me. 290) collector of taxes; and sworn (Bennett v. Treat, 41 Me. 226); and never having " refused to serve or give the requisite bond" (Stat. 1865, c. 318, incorporated into R. S., c. 6, § 97. Morrell v. Sylvester, 1 Me. 248); was an officer of the town, duly qualified to execute any legal warrant for the collection of taxes duly committed to him. The giving of an official bond by a collector is not, in the absence of a demand therefor, a condition precedent to his assuming the duties of his office, R. S. of 1857, c. 6, § 85, being only directory. Stat. 1821, c. 116, § 23. Morrell v. Sylvester, supra. Scarborough v. Parker, 53 Me. 252.

The warrant accompanying the tax lists, directed and delivered to Giles, was not, " in substance," the one prescribed by R. S. of 1857, c. 6, § 79, in that it exempted from distress " animals" and " other goods and chattels" exempted from attachment for debt in addition to those exempted in § 79. And it being thus defective, the collector was excusable for not proceeding under it, and he could not be held liable for non-collection of the taxes. For it is well settled that a collector cannot be regarded as in fault for not enforcing the collection of taxes committed to him, when his warrant confers no authority to distrain ( Frankfort v. White, 41 Me. 537); or too little. Orneville v. Pearson, 61 Me. 552. Boothbay v. Giles, 64 Me. 403.

But while the collector was under no obligation to execute a warrant irregular on its face, the tax-payers may waive any formal defects and pay their taxes to the collector; and if he receives them, the defective warrant is no defense against the claim of the town for the money thus actually received. Trescott v. Moan, 50 Me. 347, and cases.

In August, 1869, the defendants executed and delivered to the plaintiffs a written instrument, expressed in the precise terms of a collector's official bond, wherein Giles " as principal," and the other defendants " as sureties," affirm that their " hands and seals" " witness" that they " are held and firmly bound" unto the plaintiffs " in the sum of $25.000," to the payment of which they " bind" themselves, etc. The condition of this " obligation" is in the terms of the statute. R. S. of 1857, c. 6, § 85. The only respect wherein this instrument differs from a complete, formal bond of a collector is that it has no seals affixed to the signatures. Generally the term " bond" implies an instrument under seal; but it does not, necessarily, one under seal, with a penalty or forfeiture. Stone v. Bradbury, 14 Me. 185. But the official bond required by statute must be sealed; and such an instrument was evidently intended to be executed by these parties, but they accidentally omitted to affix their seals. If they had even affixed one, it might suffice, for all the defendants might adopt that one. Bank of Cumb. v. Bugbee, 19 Me. 27. This instrument, however, contained none; and the fact that it contained the words " " " witness our hands and seals," when there is no seal attached, does not make it a bond or sealed instrument. Chilton v. People, 66 Ill. 501. The plaintiffs, therefore, did not consider it a sealed instrument, but a simple contract, and have brought assumpsit instead of debt.

What are the force and effect of this simple contract having the precise terms of a bond?

A bond...