Beers v. Botsford

3 Day 159

Opinion

By the Court.

Footnotes

•

(a)

By the statute entitled “ An act providing for the collection and payment of rates and taxes,” it is enacted, that on ncgiect of a collector, the treasurer shall issue a distress or warrant against him, for the amount due; on return of that unsatisfied, he , , shall issue a distress against the goods, &c. of the selectmen; and on return of that unsatisfied, he shall issue a distress for the sum due, and all charges, against the goods and chattels of the inhabitants of the town; and the several towns are made responsible for the full amount of their proportion of the state taxes.

By the statute, then, the treasurer issues the several warrants or executions in succession, without the interference of any court. Of course, record evidence does not exist that all or either have issued. The proof rests wholly in parol. From the nature of the case, none other could exist. The minutes of the treasurer, if he made any, must be shown by parol. It was proper, then, to admit the parol evidence offered, respecting the issuing, the levy, and the loss, of the executions in question. And proof that an execution had issued against the town was, at least, prima facie evidence that an execution had previously issued against the collector, and against the selectmen.

This is substantially an action to recover money advanced by the plaintiff, at the request, and to the use of the defendants. More is evidently stated in the declaration than was necessary. To entitle the plaintiff to a recovery, it must, indeed, appear, that the execution which was levied, and which he paid, was in fact an execution against the town. The evidence of this fact is -opposed, on the part of the defendants, by the receipt of the property on an execution against, the collector. Yet, as the existence of an execution against the town presupposes an uncancelled execution against the collector, and that he is eventually responsible for the whole; it is possible the receipt may have been impro perly drawn. When evidence is thus apparently contra*dietary, and yet is capable of satisfactory explanation, it is the peculiar province of the jury to decide. In the , . . , ' . , direction to the jury on this point, we perceive nothing improper; nor do we conceive it could affect the right of the plaintiff to recover, whether the property receipted was originally his, or belonged to the town, provided it appeared he was not indemnified out of the property. And though others may have advanced money to the town on che same execution, the contract of indemnity is several as well as joint.

We are, therefore, of opinion, that the direction to the jury on the several points stated Was legal and proper ; and the facts thus submitted to their consideration were, the material facts alleged ; and being found, are sufficient to show the right of the plaintiff to recover.

New trial not to be granted.

Mitchell, Ch. J. having an estate in JSfe-wtown subject to tax*' ation, ami Edmond, J. being an inhabitant of that town, declined sitting in this cause.