Spaulding v. Northumberland

Smith, J. 1. The defendants are not, as matter of law, chargeable with negligence by reason of not having had the question of the right to a homestead determined, in the mode prescribed in Gen. Laws, c. 138, .s. 20, before completing the levy. Whether they were negligent in this respect is a question of fact which has been found in their favor. Furthermore, the plaintiff, at the time of the levy, concurred in the conclusion of the defendants, that Cobleigh and wife were not entitled to a homestead, and that it was safe to disregard their demand. Having assented to the levying of the execution without the setting out of a homestead, he cannot now be heard to say the defendants were negligent in disregarding the demand. 2. The plaintiff contends that his agreement to indemnify the town ought not to be enforced against him because of the neglect of the selectmen to enforce the collection of the uncollected taxes. It is not contended that there was any resignation of the office of collector by Charles Cobleigh, except by implication. Whether his action in April, 1877, was a resignation of the office, is a question of fact which has not been found; nor, if there was a resignation, has its acceptance been found. The offer of the lists to him in April, 1877, and his calling for and receiving the lists in August, 1880, are facts from which it would seem the parties — collector and selectmen — understood he had not resigned. The selectmen at any time from and after April, 1877, might have required of him a new bond within ten days after a written notice to that effect, and upon his neglect to give one, might have removed him without a hearing. G. L., c. 42, s. 9. It was the duty, then, of Charles Cobleigh, not having resigned nor been removed, to collect the uncollected taxes, according to the precept of his warrants, first for the town, and, secondly, for the benefit of his sureties in case the judgments of the town should be satisfied out of the property- of his sureties. The delinquent tax-payers were not released from liability to pay their taxes, or from compulsory payment, by the fact that the defendant town recovered judgment against the collector and his sureties for the amount of the uncollected taxes. The selectmen had no power to agree that the collection might be stayed or delayed. They could neither collect the taxes themselves, nor give directions concerning their *161 collection. They had no power over the collector, except to remove him if in their judgment he should become insane, or otherwise incapacitated to discharge the duties of collector, or should fail to give a new bond when required. G. L., c. 42, s. 9; Northumberland v. Cobleigh, 59 N. H. 250, 255. It does not appear that the return of the lists to Charles Cobleigh, in August, 1880, was wrongful. The plaintiff’s claim for relief seems to rest upon two grounds,— (1) that the defendants omitted to enforce payment of the uncollected taxes, and (2) that he was prejudiced by the redelivery of the lists to the collector. The lists were delivered to Cobleigh against the objection of the plaintiff. But it does not appear how he would be benefited by having the lists lodged with the selectmen, thereby depriving the collector of the power of collecting the delinquent taxes, the lists undoubtedly growing more uncollectible with the delay. Any collections made by the collector would belong primarily to the defendants until their claims against him should be satisfied, and the balance they would hold in trust for the benefit of his sureties, whose property may have been taken to satisfy his debt to the town. Any verbal understanding that the taxes should go for the benefit of Wayne Cobleigh, and were not to be paid to the town, could not control the duty of the collector or selectmen. The defendants having released their attachment upon the plaintiff’s undertaking to indemnify them, they owed him no duty except to refrain from the doing of any act which might work injury to him. If they had more than one remedy, as by extent, a suit on the collector’s bond, or the appointment of a new collector (Northumberland v. Cobleigh, 59 N. H. 250, 255), the plaintiff’s agreement gave him no right to elect which remedy the defendants should pursue. By accepting the plaintiff’s agreement the defendants did not waive or abandon any remedy given by the law to secure payment from the collector of the delinquent taxes. If one course was more favorable than another to the plaintiff, it was incumbent on him, at least, to make his wishes known. But if there was any negligence in the selectmen in not enforcing collections prior to March, 1878, the plaintiff as one of the board was guilty with the others, and cannot complain that nothing was done; and it does not appear that he ever complained after March, 1878, that the taxes were not collected, or requested his successors in office to appoint a new collector, require a new bond of Cobleigh, or take any other steps to compel payment of the uncollected taxes. Having done nothing while he was in office to compel payment of the delinquent taxes, and having made no complaint after he went out of office that nothing was done, it would seem that he was content to have nothing done. Upon the facts reported the plaintiff shows no cause for relief. Bill dismissed. Clark, J., did not sit: the others concurred.