Ware v. Bradbury

29 F. Cas. 219, 3 Sumn. 186

• Court: U.S. Circuit Court for the District of Maine
• Decided: May 15, 1838
• Status: Published

Opinion

STORY, Circuit. Justice.

When this cause was formerly spoken to by the counsel, some misapprehension existed, on my part, as to the true state of the facts. It was then supposed by me, that the objection made at the trial was. that all the assessors were not sworn, there being no proof by any certificate that William Hight, one of the assessors, was sworn. It now, however, distinctly appears, from the papers produced to the court, that Plight was at another time regularly sworn, and a certificate thereof was made by the town clerk. The real objection, therefore, is of a more limited character. It appears from the records of the town of Athens, that at a legal meeting of the inhabitants, on the 1st of April, 1833. Wingate Bradbury, William Hight, and Gilman Hall were chosen selectmen of the town for the year 1S33; and afterwards it was at the same meeting voted, “That the selectmen be assessors and overseers of the poor." Benjamin F. Greene was then the town clerk, and also a justice of the peace; and he entered upon the records of the town, immediately opposite to the names of the selectmen. “Sworn to office by B. F. Greene. J. Peace, except Deacon Hight”; and immediately below the vote appointing the selectmen to be assessors and overseers, he added, “Sworn to office by B. F. Greene, J. Peace, except Deacon Plight.” Now, the objection taken is, that this memorandum on the town records, though signed by the town clerk, as a justice of the peace, is not a sufficient certificate of the official oath taken by Bradbury and Hall, as assessors, according to the requirements of law. We cannot yield to this objection. In our judgment, the certificate is sufficient to establish the fact, that the official oath was duly taken by the assessors; and the form or place in which the certificate was made or recorded cannot be material. This objection is therefore overruled.

The other objection is founded upon a mistaken view of the actual ruling of the district judge at the trial. He has certified that his direction to the juiy was in substance as follows: “That if the jury believe that Ware (the plaintiff), handed to the assessors a schedule of his property, as containing his whole property taxable in Athens, they (the assess-orsi. were bound cither to tender him his oath to the schedule, or to tax him according to the schedule. But if the jury believed that it was not handed to them (the assessorsi, as a complete schedule, then the tax was not rendered illegal by taxing him for money at interest, although no such item as that was contained in the schedule delivered to the assessors.” This direction seems to me entirely unexceptionable, in point of law, and, indeed, it is-precisely what the argument of the learned counsel for the plaintiff supposes to have been required by the circumstances of the case.² Motion overruled.

2 [Sec act of Maine respecting assessment of taxes (2 Laws Me. 1821. c. 116. § 12).]