Town of Charlotte v. Webb

[48] The opinion of the court was delivered by Williams, Ch. J. The questions in this case arise both from the judgment rendered by the county court on the plea in abatement, an(j the decisions made at the trial of the issues joined to the jury. The original writ was served by a constable of the town of Charlotte. It is contended for the defendants, that the court, for this cause, should have abated the writ, on motion and without plea. Where there is a want of jurisdiction in the court, or where the writ is itself a nullity, so that a judgment thereon would be incurably erroneous, it would be the duty of the court, on this being shown to them, whether by plea, motion, or otherwise, to dismiss the writ; or, as it is said in some cases, to abate it ex officio. The object of the service of a writ is primarily for the purpose of notice to the defendant to appear. He may appear and answer, and by that appearance or answer, waive any advantage which might otherwise have been taken of any irregularity or defect in the service. If he intends to insist upon any advantage, in consequence of an irregular or defective service, he must set forth the irregularity or defect, in a plea framed according to the established rules of pleading. The inhabitants of a town are not considered as the parties to a suit in the name of their town, so far that they can either release or Control the suit. They were excluded from being witnesses by the common law, on the score of interest alone. Hence, while a rated inhabitant was excluded as a witness in such suit, an inabitant not rated was admitted. An inhabitant who has no interest in the event of a suit, for or against the town, may therefore serve a writ to which the town is a party. At all events, the fact that a writ was served by an inhabitant is not of itself sufficient to induce the court, at any stage of the proceedings, to abate or dismiss the suit on motion. The irregularity in the service of the writ in this case was the proper subject of a plea in abatement, and unless the plea can stand the test of a demurrer, the county court rightly awarded a respondeos ouster. The plea is obviously defective and informal. It is not directly averred that the constable was interested in the suit, but his interest is only inferred by way of argument, from the fact of his being an inhabitant, and it is not distinctly averred that he was an inhabitant. There is no prayer of judgment, either in the beginning or conclusion of the plea. Indeed, the defects in the plea are so obvious, that it was not much insisted on in the argument that it could be sustained as a regular plea in abatement. There is, therefore, no error in the judgment of the county court on the plea in abatement. [49] Several questions have been raised on the determinations of the' . . . county court, made at the trial. It is argued, that the receipt exe cuted by the collector, Webb, was not admissible in evidence' in this suit. We think, however, that these receipts are something more than the mere verbal admissions of a person. They may be considered as the written evidence of a particular fact, intended at the time as the evidence to prove that fact whenever it should come in question. Like receipts for writs or executions, they are designed to supercede the necessity of preserving any other testimony as to the fact of delivery and receiving the rate-bill and warrant, and are proper evidence as well against the collector as against his sureties. — In the case of Middleton and al. vs. Milton, 10 Barn. and Cres. 317, an entry made by a deceased collector of taxes in a private book, kept by him for his own convenience, whereby he charged himself with the receipt of money, was held to be evidence of the receipt of the money in an action against his surety, on a bond executed to secure the due payment of the taxes received by the collector. . It appears that an extent, which had issued against the inhabitants of the town of Charlotte, and which had been paid by them, was admitted in evidence, though objected to by the defendants. This was certainly admissible for several purposes. It was evidence of the amount paid by the plaintiffs, and that the payment was not a voluntary payment. The regularity of the previous proceedings to be taken before issuing the extent could not be questioned by these parties in this suit, but their regularity was to be presumed. An extent is in the nature of a scire facias, issued by a public officer. The recital therein was, to these parties, at least prima facie evidence that the proceedings were had agreeable thereto. The evidence as to the two rate-bills, it is contended, was also insufficient, or improperly received, to prove the fact of the delivery of those rate-bills, together with the warrant for the collection of the town tax, to the collector. The receipt executed by the collector, admitted as above mentioned, alone, and certainly when taken in connection with the testimony of Joseph D. Farnsworth, as detailed in the bill of exceptions, was prima facie evidence of the regularity of the rate-bill. The object of a rate-bill is only to ascertain the amount, or the particular tax, due from each individual, and this is ascertained by mere calculation. The tax was voted on the list of 1827, and if the collector had any other rate-bill containing the list of that year, this fax could as well be calculated ' [50] 3n(j carried into a column of figures against the names of the individuals in that rate-bill, as m any other way. But further:- the rate-bill was by the receipt proved to be in the hands of the de-Webb. If there was any such irregularity or defect in the rate-bill as would exonerate the defendants, or excuse the collector from collecting the same, he might and should have produced the same in evidence.. The evidence also in relation to the rate-bill for the state tax was entirely satisfactory. On the receipt of the warrant from the state treasurer, it becomes the duty of the select men to make out a rate-bill. Such a rate-bill was made out and signed by one of the selectmen, and delivered to the defendant, Webb, who agreed to procure the signatures of the other selectmen. It was in evidence that it was signed by Mr. Grant, another selectman, although there was some uncertainty as to the time when. But from the rate-bill produced, apparently regular, taken in connection with the testimony, it sufficiently appeared, that the rate-bill was made but in season, or that defendant, Webb, who was collector, was under no embarrassment in the collection of the tax, from the' default or neglect of the town or of the officers thereof. The charge of the court to the jury upon this part of the case has been objected to, inasmuch as the judge told the jury, that the legal presumption was, from the facts stated, that the signature of the other selectman, Mr. Grant, was immediately procured to the rate-bill. On this point it may be observed, that, from the evidence in relation to the undertaking of the collector to procure the signature of the other selectman, after he received the rate-bill certified by one of them, it was in a great measure immaterial when be caused the same to be perfected by the signature of the other. But the charge on this point is not liable to the objection raised. The language made use of was not, that this presumption was one which the jury were bound by the rules of law to draw; but was, only, that the legitimate and fair presumption from the facts in evidence was, that this signature was immediately procured. The defendant, Webb, had engaged so to do, and it was to be presumed, that in this particular, when there was nothing to lead to a doubt, he had acted agreeable to his undertaking. Upon the subject of damages, it is only necessary to observe, that in consequence of the neglect of the collector, the town had been subjected to the payment of the amount of the whole of the state tax, and the town tax had not been fully paid to them. The correct rule of damages was, therefore, the whole amount of the [51] taxes, or what thev had been compelled to pay. The collector . i"ii*A 1 ^ is empowered yet to collect any arrearages" due from individuals, The object in taking the bond was, to ensure a punctual and faithful performance of the duties required of the collector. The plaintiffs may therefore resort to this bond, and are not under obligation to endeavor to ascertain what remains uncollected, or take any measures to collect from the several individuals, if there are any who have neglected to pay their tax to the collector. The .result of the whole is, that the judgment of the county court must be affirmed.