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dwelling and furniture, but soon after rescinded the bargain, (for the alleged reason, that, if he should die abroad, his wife might wish to return to Boston,) and let them to a tenant. Held, he had changed his domicil, and was not taxable as an inhabitant of Boston in 1837. Thorndike v. City, &c. 1 Met. 242.

9. A native inhabitant of Boston, intending to reside in France with his family, sailed for that country in June, 1836, and in three months was followed by his family. His mansion and furniture were leased for a year, and he hired a house in Paris for the same term. When he left, he intended to return and reside again in Boston, but had not fixed on any time. In about sixteen months he returned, and his family about nine months afterwards. Held, he had not ceased to be an inhabitant of Boston, and continued to be taxable there for his person and personal estate. — Sears v. City, &c. 1 Met. 250,

10. Personal property is taxable, in the town of which the owner is an inhabitant when it is assessed; but his habitancy is not to be determined, wholly, by his election to pay a tax in one town rather than another. This is only one circumstance among others to settle the question of actual habitancy. Lyman v. Fiske, xvii.

231.

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11. The defendants, a corporation, appointed an agent to take charge of their interest in certain land mortgaged to them, and the treasurer authorized him to advance money to the mortgagor, for the purpose of paying a tax laid for the construction of a road through the land, but the agent gave a note therefor in the name of the company, which was afterwards indorsed to the plaintiff. Held, the corporation was not liable upon the note, nor for money had and received. Webber v. Williams, &c. xxiii. 302.

C. Assessment of taxes; rights, duties and liabilities of

assessors.

1. A warrant from the state treasurer is not necessary to the validity of an assessment by town assessors, pursuant to a legislative grant and apportionment of a state tax. Alvord v. Collin, xx. 418.

2. So, the assessment of a county tax would be valid under like circumstances, without a warrant from the county treasurer. Ibid.

3. A town voted to raise a certain sum for schools, and another sum for contingent expenses. In assessing these sums, together

with the county tax, the assessors made one list of the school tax, and another of the county tax and the sum voted for contingencies, and on the first list the sum assessed exceeded the sum voted for schools by more than five per cent., but the excess on both lists together was less than five per cent. on the whole sum to be raised by taxation. Held, under St. 1785, c. 50, § 11, the assessment was valid. Ibid.

4. In the assessment of a tax on unimproved land of a non-resident, the land, by mistake, was set in the list against the name of the previous owner, but was otherwise properly described. Held, a legal assessment. - Ibid.

5. By § 3, c. 138, of the statute of 1823, a copy of the lists of assessment and of the valuation was required to be deposited in the assessors' office, if any, otherwise, with the chairman or principal assessor, for general examination. Held, where assessors elected no chairman, one of them, who kept the books and papers and did all their writing, might be regarded as the principal assessor within the act. Sprague v. Bailey, xix. 436.

6. A failure by the assessors, precisely to follow the form of valuation prescribed by St. 1823, c. 138, does not furnish a ground of action to one whose property is levied upon by the collector.Ibid.

7. The omission of assessors, through error of judgment or mistake of law, to assess one person a school-district tax, does not avoid the assessment as to others. Williams v. School, &c. xxi. 75.

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8. If one of three assessors, being duly notified, refuse to attend and aid in assessing a tax, the others may act without him.-— Ibid.

9. By the Revised Statutes, c. 23, § 27, a school-district tax shall be assessed within thirty days after the district-clerk certifies to the assessors the sum voted. Held, this act was only directory, and an assessment after such period was valid. Ibid.

10. The assessors' list of valuation, and assessment of polls and estates, did not exhibit in distinct columns the "true value of real estate" and "the reduced value," according to the Revised Statutes, but contained a column of the "value," and a similar one as to personal estate. Held, this irregularity did not avoid the valuation and assessment. Torrey v. Millbury, xxi. 64.

11. Where a town votes that its assessors shall be allowed a certain gross sum for their services during the year, they cannot claim, under the Revised Statutes, c. 7, § 45, one dollar a day in addition. Moody v. Inhabitants, &c. 3 Met. 431.

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12. Assessors are entitled to the statute compensation of one dollar for each day of actual service, though it exceed the sum voted. If it fall short of the sum voted, they are entitled to such sum; but not to both, unless the terms of the vote show that the sum voted was meant to be in addition to the one dollar per day. Ibid.

13. St. 1823, c. 138, § 5, exempting assessors from responsibility for the assessment of a wrongful tax, collected by distress, does not apply to the case of a poll tax assessed upon a person in a town of which he is not an inhabitant. And they are liable, though the residence of such person was included in the limits of the town, as perambulated. Freeman v. Kenney, xv. 44.

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14. Trespass, not case, is the proper remedy. — Ibid.

15. No action lies against assessors, who act with fidelity and integrity in assessing a tax, under a vote duly certified to them, for accidentally assessing one not an inhabitant, nor liable to taxation. Baker v. Allen, xxi. 382.

D. Abatement of taxes.

1. St. 1815, c. 130, provides, that a copy of § 2, allowing an abatement to those who pay promptly, shall be publicly posted up. Held, this provision is merely directory to the assessors; and a failure to comply with it does not furnish a ground of action to one whose property is levied upon by the collector. v. Bailey, xix. 436.

Sprague

2. A mandamus does not lie, upon the judgment of county commissioners, on a complaint for abatement of a tax; this being ajudicial act. Gibbs v. County, &c. xix. 298.

3. A certiorari would lie to correct any error in matter of law. - Ibid.

E. Collection of taxes; sale of property therefor; rights, &c., of collectors.

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1. By the "act to amend the Revised Statutes," when one imprisoned for non-payment of taxes is discharged by taking the poor debtor's oath; the collector is liable for the tax and all charges, unless he committed the party within one year after receiving the tax to collect. Held, a collector was not hereby ren

dered liable for the support in jail of one thus imprisoned. habitants, &c. v. Walcutt, 3 Met. 152.

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2. The right of the collector, to collect a tax under a warrant, does not depend upon the regularity of the town-meeting which voted the tax, or of the vote itself. Sprague v. Bailey, xix. 436.

3. By the Revised Statutes, c. 8, § 15, any person who, after the assessment of a tax upon him, removes out of the precinct of the collector without paying it, is made liable to an action therefor by the collector, as for his own debt. Held, applicable, where the defendant left, with the intention of returning after six months. Houghton v. Davenport, xxiii. 235.

4. In an action of assumpsit under this statute, the declaration alleged, that the defendant, when the tax was assessed, resided within the collector's precinct, and afterwards removed therefrom; and whereas a tax had been duly raised, and a warrant issued by the selectmen for calling a town-meeting, to choose town-officers, at which meeting certain persons were duly elected assessors, &c.; and at the same meeting the plaintiff was chosen collector, and was qualified; and the assessors afterwards, duly and according to law, assessed a tax to the defendant, on her personal estate, whereof she was the owner and liable to be taxed, which tax was committed to the plaintiff for collection, &c. Held, the declaration was good, after verdict, though material facts were stated in the form of recitals, and not direct averments; that the allegation, that the tax had been duly and according to law assessed, &c., was a substantial averment that its assessment had been duly ordered by competent authority, and also supplied the want of an averment, that the defendant was an inhabitant on the first of May, so far as this was material to the legality of the tax.

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- Ibid.

5. A warrant to a tax collector is valid, though signed by only Bailey, xix. 436.

a majority of the assessors.

Sprague v.

6. A collector may distrain goods and sell them within seven days, though his warrant does not direct him thus to sell them. King v. Whitcomb, 1 Met. 328.

7. To justify a collector in seizing and selling the goods of a non-resident, having no agent or attorney within the commonwealth, it is sufficient that he demand payment at the party's last and usual place of abode in the town where he is taxed. - Ibid.

8. By a law of the United States, (1815, c. 174,) where property thereby made subject to a direct tax was indivisible, so that the whole tax, with costs, &c., could not be raised by the sale of a part of the property; the whole must be sold, and the proceeds, after paying the tax, &c., paid to the owner. Held, the sale of an undivided portion of real estate, the whole of which belonged

to the party assessed, was invalid. Loud v. Penniman, xix.

539.

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9. In the advertisement of a sale of unimproved lands for taxes, a certain parcel, not being known to have been conveyed, was set against the name of the previous owner, but the amount of the tax, the time and place of sale, the town where the land lay, the number of the lot, and the quantity of the land, were expressed. Held, the notice of sale was sufficient, under St. 1785, c. 70, § 7, Alvord v. Collin, xx. 418.

Tenants in Common.

(See Partition.)

1. A tenant in common, who enters and cuts timber upon land, is presumed to do it under his legal title, no ouster of his cotenants being shown. Whiting v. Dewey, xv. 428.

2. One tenant in common of a well may send his servant down to cleanse it, where he has reason to suppose that the bottom is dirty; and, though the fact prove to be otherwise, if the other obstruct him in doing it, he may maintain a suit for such obstruction. Newton v. Newton, xvii. 201.

3. A conveyance, by one tenant in common, of the whole land in fee, with covenants of seisin and warranty, followed by the entry and exclusive possession of the grantee; is a disseisin of the other. Kittredge v. Locks, &c. xvii. 246.

4. An execution cannot be levied upon the undivided interest of a tenant in common in a part of the land. - Blossom v. Brightman, xxi. 283.

5. Where a part of land, owned in common, is assigned for dower, the reversion and the residue of the land are in some respects separate tenancies in common; so that a creditor of one of the tenants may levy on his share in them in different proportions, or on his share in only one of them. - Peabody v. Minot, xxiv. 329.

6. A levy being made on undivided portions of the reversion and of the residue, the whole land was appraised together, in one sum. Held, such appraisement was legal. — Ibid.

7. A first attaching creditor levied his execution by metes and bounds on the land of a tenant in common, who had the right of taking his share where he should select. The part levied on was afterwards, upon process of partition, by request of the debtor,

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