Norridgewock v. Hale

• Decision Date: 02 June 1888
• Citation: 80 Me. 362,14 A. 943
• Parties: NORRIDGEWOCK v. HALE et al., (two cases.)
• Court: Maine Supreme Court

14 A. 943

80 Me. 362

NORRIDGEWOCK

v. HALE et al., (two cases.)¹

Supreme Judicial Court of Maine.

June 2, 1888.

On report from supreme judicial court, Somerset county.

Debt on bond of town collector and of town treasurer, brought against principal and sureties, the same in each. The opinion states the facts.

S. S. Brown, for plaintiff. D. D. Stewart, for defendants.

VIRGIN, J. One of these actions is on a town collector's official bond, and the other on a treasurer's, both for the municipal year of 1877. As he was both collector and treasurer that year, the principal is the same in both bonds; so in fact are the sureties. Instead of being first sent to an auditor, (Rev. St. c. 82, § 69; Phipsburg v. Dickinson, 78 Me. 457, 7 Atl. Rep. 9,) the cases are reported directly to this court,—a practice not to be encouraged. The collector kept no record of his account with the town, but did keep at least a partial one as treasurer. The report shows that the taxes were duly assessed, and amounted to $14,744.89, which sum included the state tax of $1,930.13 and the county tax of $702.35, and lists therefor, with a warrant "admitted to be in the usual form," were committed to the collector. He was therefore bound to account for the whole amount thus committed to him. Gorham v. Hall, 57 Me. 61, 62. And he did so, as appears by the statement of a settlement with the assessors on March 7, 1881. This statement shows that he was credited with the payment of both state and county taxes, as evidenced by the following item therein: "By state and county tax, $2,632,48," that sum being the aggregate of the two taxes named. But the certificate from the state treasurer, "admitted by agreement instead of any formal evidence of the same facts," shows that he did not as collector, but did as treasurer, pay the state tax by offsetting the school fund and mill tax, amounting to $872.65, and the balance, $1,057.48, in money. And the treasurer's own account with the town, wherein he charges the town, "To cash paid E. H. Banks, $1,930.13, less school fund and mill tax, $872.65,—$1,057.48," shows the same fact that he, as treasurer, and not as collector, paid the state tax. Moreover, the treasurer's account with the town contains the following items: "September 26, 1877, to cash paid H. C. Hall, county treasurer, $100. December 29, 1877, to cash paid H. C. Hall, county treasurer, $300. March 12 1878, to cash paid H. C. Hall, county treasurer, $302.37,"—these sums aggregating $702.37, the amount of the county tax for 1877. Hereupon the plaintiffs contend that, as the collector did not in fact pay either of these taxes, but was by mistake allowed for the payment of them in his settlement with the town on March 7, 1881, the error should be corrected, and their amount charged against him in this action on his bond. To be sure, it was the duty of the collector, and not of the treasurer, to pay these taxes, as directed in his warrant; and when he had paid the state tax, then, and not before, the school fund and mill tax became payable to the town treasurer. But, as the treasurer did pay them, and misappropriated the money by loaning it to the collector for that purpose, and the collector...