Downer v. Woodbury

The opinion of the court was delivered by Redfield, J. In this case the replication being de injuria fyc., and no objection having been taken on that account, the defendant must prove every material allegation in his plea. 1. It is said, that there was no proof that the defendant had given a bond, — which is expressly alleged in the plea. But that allegation does not attempt to sot forth the bond, or make any profert of it. We should therefore be inclined to think, that it was sufficiently shown that the collector gave bond, by his having acted as col [333] lector. The former fact will be inferred from the latter. It is, in fact, proof of it. It might be otherwise, if the bond had been described and vouched in proof. 2. The act granting the state tax is also expressly alleged ; but it need not be specifically proved, because the court will take notice of a general law of the state. This point is, in principle, precisely analogous to the last. 3. It is claimed by the defendant, that the plea contains no averment, that the plaintiff had any list in the town of Bethel. But it is alleged, that both of the taxes in the rate bill “ were assessed upon the lists of the persons named for the year 1840,” and also, that the plaintiff and two others “ were jointly and legally assessed the sum of $2,07, being three cents on the dollar of the list of said Downer and others for the year 1840.” This averment was sufficient upon a traverse, and probably upon a general demurrer. But it is said, this, also, is one of those facts, which the court will infer from the tax bill, especially in the case of state taxes. But we think not. The case of a state tax does not differ, in this respect, from that of a town tax. In the case of a state tax the court will take notice of the voting of the tax; and the issuing of the treasurer’s warrant proves nothing, and raises no intendment, as to the persons liable to pay taxes. That is a matter to be determined by the selectmen, the same as in the case of town taxes; an d, if it will be presumed in one case, it should be in the other, It is a fact necessary to be shown, to establish the right of the selectmen to make an assessment upon the plaintiff, — the very foundation of their jurisdiction. In regard to this the case of Collamer v. Drury, 16 Vt. 574, is strictly in point. 4. We do not perceive why the notice to Downer was not sufficient, so long as he expressly disclaimed all intention ever to pay the tax, unless compelled. Under these circumstances the law will hardly require of a collector to give time and appoint a place, where he will receive the tax. Judgment reversed and cause remanded.