Dearing v. Heard

The case was continued for advisement, and the opinion of the Court was afterwards prepared by

Weston C. J.

The plaintiff was delinquent but a few cents, in the payment of his highway taxes, on account of which he has been subjected to considerable expense and sacrifice of property. The defendant, in his return to his warrant, has given his own account of his proceedings; and the principal question is, whether they afford him a sufficient justification.

By the statute of 1821, c. 118, sec. 16, it is provided, that if highway taxes are not paid by the time limited by law, or at such periods, as may be agreed upon by the town, the assessors may deliver to the surveyors of highways, warrants of distress, in the form prescribed by law for collecting other town taxes.

In May, 1836, the assessors committed to the defendant, as such surveyor, assessments of the highway tax in his district, bearing the name of the plaintiff, and his proportion of the tax of two thousand dollars, voted by the town to be expended in repairing the highways, the one half of which he was to cause to be expended thereon before the &st of July, and the other half before the first of April, next following. For the collection of this tax, they gave him a warrant, requiring him to obtain by distress, what was not paid in labor and materials. Prior to the distress, of which the plaintiff complains, he had paid the first half of his proportion of this tax, and the far greater part of the other half. The distress was made on the second day of February ; but the time limited for the expenditure of the tax then due did not expire, until the first of April following. Now until the time limited for paying in labor and materials has expired, the distress is not legally authorized. It is urged, that the season for repairing highways, for all practical purposes, was over in February. It is a sufficient answer, that the time appointed was further extended, until the expiration of which a distress was not warranted.

By the thirteenth section of the same statute, the surveyor is required to give, to each person on his list, forty-eight hours notice of the times and places, by him appointed, for providing materials and laboring. Such notice is indispensable, to fix the delinquency of the party, attempted to be charged. No such notice appears in the return of the warrant, by this defendant. He states, that the plaintiff, though requested, neglected and refused to pay in labor or otherwise ; but whether he had the notice of the times and places, when and where he was to labor, to which he was by law entitled, does not appear. And we are of opinion, that the justification set up by the defendant has failed, first, because he made the distress before the time limited to pay in labor and materials had expired; secondly, because it does not appear, that' the plaintiff had the notice prescribed by the statute. The nonsuit is accordingly set aside, and a new trial granted.