SPAULDING v. NORTHUMBERLAND

Ladd Fletcher, for the plaintiff. The case clearly shows that the books from the first were considered by the town of value, and were, in fact, of value, as a source from which the town could have obtained a large part of the uncollected taxes, thereby lessening to a great extent the amount for which Cobleigh was liable.

When the town gave up to Cobleigh, in direct disregard of Spaulding's protest, the tax-warrants, they thereby assumed all risk for any loss which might accrue to the town or to Spaulding to the extent of the taxes, which were then on the list, that were collectible. Every principle of equity and good faith required the defendants either to retain the tax-books as a part of their security, or else, if they made their election to give them up against the protest of Spaulding, to bear the loss resulting therefrom. The case shows that at the time the tax-books were given up the town were aware of the fact that Cobleigh intended to claim a homestead, and defeat to that extent the levy. Spaulding claimed that the town should not give up the books until his agreement was given up to him. A stronger case of one party trying to visit upon another the direct result of his deliberate act cannot easily be conceived.

The obligations of Spaulding's bond did not extend to indemnifying the town for their own mistakes. It would be a strange construction of this paper to hold that Spaulding's liability upon it extended beyond his own acts, and covered the mistakes and blunders of the town and their agents. Suppose the town had neglected, through mistake, negligence, or want of knowledge, to levy upon the real estate within the time required by law, and had thereby lost their lien, could it be claimed in such a case that Spaulding was liable upon this indemnity? The undertaking of Spaulding was only against loss, cost, or damage which accrued to the town from having released the goods, — loss, cost, or damage which could fairly and legitimately be said to result from so releasing the goods, — not such as should come upon the town as the direct and proximate consequence of a failure to proceed according to law. The loss and injury which resulted from a disregard of the statute provisions in making the levy must fall upon the party in legal fault. It has been claimed that because Spaulding was one of the selectmen at the time the agreement was made, he therefore stands differently from what he would had he not occupied that position. But no weight can be attached to that fact, because the other two selectmen were present and acted on behalf of the town in making the agreement, and there is no pretence [pretense] but they acted in good faith, nor that Spaulding did not act in equally good faith throughout.

The case finds that "When the demand for a homestead was made, the question of the right of Cobleigh and his wife to a homestead was discussed, and the conclusion was that they were not entitled to a homestead, and that it was safe to disregard the demand; and in this view the plaintiff concurred." The fact that Spaulding concurred in the view that Cobleigh and wife had no homestead was of no importance. He was not one of the selectmen: he had no authority in the matter. The fact that he concurred in the general opinion no one contends was the reason why the levy was made as it was. If he had not concurred, the levy would have been made just as it was made. It was made under the advice of counsel, and by order and direction of the officers of the town. The fact that Spaulding concurred in the belief that Cobleigh and wife had no homestead is of just as much importance and has just as much bearing as the fact that any other citizen of Northumberland thought the same. Nothing that he did or said influenced the officers of the town with reference to the set-off, and the town are in no different position from that they would have been had he believed and advised directly the other way.

Charles Cobleigh's conduct in leaving the state, and giving directions to have the tax-lists given up to the selectmen, and subsequently refusing to take the tax-lists and collect the uncollected taxes, practically amounted to a resignation of the office of collector. A resignation may be either express or implied. Cloutman v. Pike, 7 N.H. 210; Johnston v. Wilson, 2 N.H. 202. The selectmen had authority under the circumstances to appoint a new collector in place of Cobleigh, because by his acts and conduct he clearly indicated that he intended to and did resign his office of collector. Spaulding held the office of selectman less than a year after Cobleigh refused to take the lists, and never afterwards. At the time his term of office expired the suits had not been tried, and no one was aware that Wayne Cobleigh was to be held for so large an amount as was subsequently recovered against him.

Wm. H. Heywood, for the defendants. The judgments were supposed to have been satisfied in full out of the property of Wayne Cobleigh, and Charles Cobleigh then demanded the tax bills in behalf of Wayne Cobleigh, that the taxes due might be collected for his benefit and to indemnify him for his great loss. After some delay, and on the advice of counsel, the selectmen gave up the tax-bills to the collector. The plaintiff claimed when the tax-bills were given up that the selectmen should hold them as indemnity to satisfy anything that might remain unsatisfied of the town's claims, so that he should not be called upon on his obligation given on the release of the goods from the attachment.

It is to be noticed that the plaintiff was one of the selectmen when the goods were released, and the obligation was given by him. When the tax-bills were given up by the selectmen, they had reason to believe that the town's claims were fully satisfied, and that they ought to be delivered to the collector, that Wayne Cobleigh might get what he could to indemnify him for his loss. The town had chosen to rely on the collector's bonds for indemnity, and had prosecuted them to judgment, and had procured them to be satisfied, and the selectmen had no right to hold the tax-bills for the town. Then why should they hold them, if under any circumstances they could have done so? It is said that the selectmen should not have given them up, if by doing so they had reason to suppose they would prejudice the rights of the plaintiff. But the court have found that on the advice of eminent counsel the levy on the homestead was made. The plaintiff was one of the selectmen, and concurred in making the levy on the whole of this homestead. The selectmen, therefore, had every reason to suppose that the town were paid, and that there could be no claim to look for further security. And the court have found, as a fact, that the selectmen were not negligent in making the levy. If there was any negligence, it was because they did not rightly decide the law, and act contrary to the advice of eminent counsel. And the only foundation for the plaintiff's claim is, that the town, by their selectmen, negligently conducted in a way to prejudice his rights.

We maintain that the selectmen never had a right to hold the tax-bills against the claim of the collector. What right have selectmen to collect taxes? It is true that a collector may be removed on certain grounds; but by Gen. Laws, c. 58, s. 1, it is enacted that his powers as collector "shall continue till the taxes in his list are collected." One way to remove a collector is to remove him in case he fails to give a new bond on notice as provided by law. But this cannot be done if the bonds are sufficient; and the case shows that the collector's bonds were sufficient, as proved by the attachments.

If any one interested in the matter had supposed that the collector was incapacitated to discharge the duties of his office, then proceedings should have been commenced to have the selectmen hear the matter, and if they found such to be the fact, to remove him and appoint a new collector. The business was in such shape that there was no obligation on the town to make the move; and if the plaintiff had an interest to have it done, he should have taken measures for that purpose. Until a removal was made Charles Cobleigh was the collector "till all the taxes on the list were collected," as provided by the law cited, and had, of course, a right to the tax-bills. If under such circumstances the selectmen had detained them, they would have been liable to a suit.

The agreement declared on was made, as already said, by the plaintiff when he was one of the selectmen, and he procured the other selectmen to take it and release the attachment, and he is bound by it. But we contend that no doings of the selectmen, so far outside of their legal and well defined duties as this transaction was, can prejudice the town and subject them to a loss of the amount that was secured and should have been retained for the security and payment of the debt to the town.

It was not a management of the "financial affairs of the town" to release this attachment to favor the plaintiff.