Cogswell v. Eames

Bigelow, C. J. We can see no reason to doubt that the defendants are liable for the whole sum collected and received for taxes, which had been duly assessed to individuals within the district for which their principal acted as deputy collector, and which he had failed to pay over or account for to the plaintiff after he had collected them. An examination of the various provisions of U. S. St. 1864, c. 173, relating to the assessment and collection of taxes, shows that they become absolutely due immediately after they are ascertained and assessed, and lists thereof are prepared under § 20 of the act aforesaid by the assessors. It is the assessment thus finally determined which fixes the liability of the person assessed, and renders him liable presently for the amount of the tax, irrespectively of the transmission of the list of taxes to the collector or deputy collector of the district. The provisions of the statute regulating the delivery of lists to collectors, and requiring notices and demand [54] of payment, are not intended as conditions precedent to the liability of the tax-payers, but only as prescribing a convenient method of collecting the taxes, and a mode of procedure in order to enforce their payment when they are not voluntarily paid. Although no person could be compelled to pay a tax assessed upon him until after the expiration of the time fixed by the notice of the collector of the district in which he resides, under § 28 of the statute above cited, nevertheless the amount of the tax borne on the list of the assessor would constitute a present debt to the government for which the tax-payer would be absolutely liable. Nor can there be any doubt of the authority of a collector or of his deputy to receive, on behalf of the government, payment of the amount of any tax, as soon as the same should be finally determined and placed on the list by the assessors as before stated. From the very nature of the duties of his office, the collector is the agent of the government to receive taxes duly ascertained and assessed on all persons within his district; and by § 10 the deputy collector is clothed with the same authority as is vested by law in the collector. The case finds that all moneys received by the principal in the bond declared on were paid to him for taxes in his capacity as deputy collector, by parties to whom they had been duly assessed and whose names were borne on the lists prepared by the assessors. We cannot doubt that the sums thus paid and received operated as a valid discharge of the tax to the persons to whom they were assessed, and that the only remedy of the government to recover the money so paid was against the collector for money received by his deputy virtute officii. In this view it is clear that the plaintiff is entitled to judgment for the penalty of the bond, and that execution ought to issue for the entire sum remaining due from the principal for taxes received by him. This result renders it wholly immaterial to the sureties how the property received by the plaintiff as collateral security for the liability to him of their principal was appropriated. Whether applied to the payment of sums received in payment of the earlier or later assessments, it extinguished pro tanto their liability to the plaintiff as sureties on the bond. But if this were [55] not so, we do not see that the right of the plaintiff to recover of the sureties would in any degree be affected by the transactiora by which the plaintiff obtained collateral security of the principal1 in the bond. It is not a case where certain specific property had been transferred to the plaintiff for the sole purpose of indemnifying him against loss which might accrue from the same causes against which the sureties had also agreed to save him harmless. If such had been the case, the plaintiff could have been held to a strict application of the property to the special purpose for which it was placed in his hands. Baker v. Briggs, 8 Pick. 129. But, in the case at bar, the property was not transferred to the plaintiff solely for the purpose of indemnifying him against loss by reason of the official acts of his deputy. On the contrary, the transfer was also made for other legitimate objects, and the property was appropriated according to the agreement and understanding of the parties, at the time the transfer was carried into effect. All appears to have been done in good faith, and we fail to see anything in the transaction which injured the sureties or impaired their legal rights. Judgment for the plaintiff1