Chandler v. Caswell

The opinion of the court was delivered by Williams, Ch. J. The plaintiff claimed title to the premises in question by virtue of two vendue deeds, and, in order to show that the collectors have complied with the directions of the statute, which requires a collector to give bonds, before he enters upon the duties of his office, to the committee appointed to superintend the expenditure of the tax, the bonds were produced. The defendant required that the subscribing witnesses should be produced. The court held that the evidence of one of the committee, to whom the bond was given, was sufficient. With respect to one of these bonds, to wit, the one executed by Denison, when he was collector, it does not distinctly appear how that was proved. The collector himself might not have been a competent witness,- if objected to on account of interest; but no objection appears to have been taken on this ground, and the only decision, which the court made, was, that the subscribing witnesses need not be called, but that the giving the bonds might be proved by the committee. Whenever a bond, or a deed, is the foundation of an action, or when it becomes a necessary part of a title, it is necessary that it should be proved in the usual way ; but when it comes in question incidentally, solely for the purpose of proving that such an instrument was executed, neither is the production of the bond, nor, if produced, is the proof of the same by the subscribing witnesses, necessary. In some cases, even, where production of a bond is necessary, as a part of the case to be proved, proof of its execution is unnecessary. In an action against a sheriff, for taking insufficient sureties on a replevin bond, the bond, produced by the defendant, may be read in evidence without proof of its execution. Scott v. Waithman, 3 Stark. R. 169. The contents of a writing, which does not constitute the ground of the action, and is only collateral to the suit, and is not in the custody of the parties, may be proved by parol. Wood v. Morris, 12 East 237, and notes. Stevens v. Pinney, 8 Taunt. 325, [4 E. C. L. 117.] Hurd v. Tuttle et al., 2 D. Ch. 43. In .the .case under consideration the execution and delivery of the [583] bond come in question only incidentally. The defendant has no interest in the bond, nor is the plaintiff to keep or have it in his custody, nor is there any provision that it should be kept, or retained, by the committee; and when the collector has collected and paid over the amount of the tax, the bond is satisfied. I can see no good reason for requiring of a purchaser under a vendue any evidence of the execution of a bond, except on the ground that such have been the adjudications of the court. In the case of Coit v. Wells, 2 Vt. 318, the only evidence that the collector had given a bond was the receipt of the committee; and although the proceedings of the collector, in that case, were scrutinized, and very stringent rules were laid down in regard to the proof necessary to sustain a sale of lands for taxes, yet it was not intimated that this testimony, as to the giving the bond, was inadmissible. The receipts of the committee have frequently been relied on to prove the giving the necessary bonds, without objection. The time of giving the bond may be material, and this can as well, or better, be proved by the committee, as by any other testimony, — or by their receipt. We can see no good reason for requiring that the execution of the bond should be proved by the subscribing witnesses ; but, taking into consideration the object for which this proof was offered, we think that the testimony of the committee themselves was competent and proper evidence to be received. The judgment of the county court is therefore affirmed.