
    Inhabitants of Trescott versus Lorenzo W. Moan & als.
    
    Although the proceedings of a town are very irregular and informal, at a meeting where assessors, treasurer and collector of taxes are elected, and taxes voted to be assessed, yet the collector is legally bound to pay over to the treasurer de facto all taxes voluntarily paid to him by the tax payers.
    Although the collector’s bond is inartificially drawn, and is vague, indefinite and uncertain, yet it is not void, if, when taken in connection with the tax bills and other evidence in the case, it contains sufficient to give it force and validity.
    A collector’s bond dated August 15, 1854, and reciting that he was “ chosen collector of taxes for the year next ensuing,” it appearing that he was chosen in 1854, that his tax bills bear date that year, and that he collected that year’s taxes, will be deemed to have reference to the municipal year 1854.
    A bond obligating the collector “faithfully to discharge his duty as collector,” although otherwise defective, is sufficient to hold him to pay over money which he has actually collected, and which in equity belongs to the town.
    On Exceptions to the ruling of Cutting, J.
    Debt on a bond purporting to have been given by Moan as collector of taxes in Trescott, dated August 15, 1854. Plea non est factum, with a brief statement.
    The plaintiffs introduced the bond as evidence, signed by Joseph W. Moan as principal, and J. M. Bell and W. H. Leighton as sureties ; also a book purporting to be the assessors’ record of taxes for the town, from which it appeared that state, county and town taxes were assessed, and committed to Moan as collector, by a warrant dated June 10, 1854, and signed by J. M. Bell and W. II. Leighton as assessors. The amount assessed was $1577,69.
    
      Here the plaintiffs rested their case. The defendants objected, that the plaintiffs had shown no breach of the condition of the bond. But the Court ruled that the plaintiffs had presented a prima facie case.
    The defendants thereupon introduced in evidence the town records of Trescott for the year 1854, by which it appeared that the annual meeting, in March, 1854, was not called or notified according to the requirements of law; and that no town clerk, selectmen, assessors, treasurer, constable or collector of taxes for said year were chosen, qualified and sworn, as required by law. The records showed that James May, Peter Caraher and Stewart McEadden were elected assessors; and that Caraher and McFadden were sworn; also, that Joseph M. Bell, ¥m. H. Leighton and Stephen A. Wilcox were chosen as selectmen, and sworn; but they did not show that Bell and Leighton were chosen or sworn as assessors. They showed that James Saunders was chosen treasurer, and sworn; and that Lorenzo W. Moan was chosen collector of taxes, and sworn. But they did not show in what manner they were chosen; or that the oath required by law was administered to either of them; or that, either Saunders or Moan had given the bond required by law. They showed that another town meeting was called, notified and held, July 8, 1854, and that, at that meeting, Joseph M. Bell was chosen collector of taxes; but it did not appear that he was sworn as collector, or acted as collector for that year.
    The defendants introduced Moan, the principal defendant, as a witness, and he testified, amongst other things, that many refused to pay their taxes as illegal, and denied that he was a legal collector; that he collected in all $1080,64, and paid the State tax $126,08, the county tax $121,22, and about $800 to Saunders, acting treasurer; that he was to have six per cent, of his collections as his compensation, which, on the amount collected, would be $64,83, making in all $1112,13.
    Joseph H. Calkins, the town agent, James Saunders, acting treasurer for 1854, Isaac H. Esty, acting treasurer for 1859 and 1860, with the treasurer’s hook of accounts, containing the account with Moan for 1854, were introduced by the plaintiffs as evidence; and tended to show that Moan had not paid on the town taxes so large a sum as he claimed to have paid, and that he had not paid all the State tax.
    The material parts of the bond are given in the opinion of the Court.
    The defendants’ counsel objected, that the bond in suit was not in the form required by law; that it was never approved by the municipal officers; that it had been mutilated or altered, and was void for its uncertainty.
    But the Court, for the purposes of this trial, overruled the objections; and decided that the bond, if there was proof of its delivery, was binding on the defendants.
    There was no proof that Saunders had given the bond re- ^ quired by law, as treasurer for 1854. And the defendants’ counsel contended that Saunders was not a legal treasurer, or authorized by law; to receive the money collected by Moan; that Moan was not a legal collector of taxes, and was not authorized by law to collect them.
    But the Court instructed the jury, amongst other things, that, as the bond recites that Moan was legally elected collector of taxes, the defendants are estopped from denying it; that, by the records of the annual meeting in March, the meeting was not legally called and warned, the town officers not legally chosen and qualified, and that there were no legal assessors or treasurer for that year. But, if the taxpayers voluntarily paid their taxes to the collector, he is bound to pay to the treasurer de facto the sums collected; that they should look at the town i’ecords, the treasurer’s book containing the account with Moan, the evidence of Saunders, Calkins and Moan, and judge whether there was anything due on the bond; and, if anything, how much. And on whatever sum they found due, if any, to allow interest from the time of demand, if any were made; and, if no demand wore made, then from the date of the writ.
    
      The jury returned a verdict for the plaintiffs for $196,46; and the defendants excepted.
    
      J. A. Lowell, for the defendants, in support of the exceptions. •
    1. The Court erred in ruling that the plaintiffs had made out a prima facie case, and that the defendants must show performance of condition of the bond. The plaintiffs, in their declaration, allege a breach, which the defendants, in their specifications of defence, deny. The plaintiffs must then produce such evidence as will show a breach, before the defendants can be held to show performance. A denial on the part of the defendants is sufficient, until the plaintiffs support their allegation by proof.
    2. The bond was not in legal form, and was vague, indefinite and ambiguous. Eor what year was the collector chosen? What year was "next ensuing” to August 15, 1854? The meeting in March, at which Moan was chosen collector, was illegally notified, and no officers were then legally elected. At a subsequent meeting, another collector was chosen.
    3. It appeared that, at the March meeting, two assessor’s were chosen and sworn, and yet the taxes were not assessed by them, nor the tax lists signed by either of them.
    4. There was no proof that Saunders gave bond as treasurer for 1854, or was authorized- to receive the money collected by Moan, or that Moan was authorized to collect it. The acting collector was not bound to pay over money collected by him, to a person who was not legally authorized to receive it. Smith v. Readfield, 27 Maine, 145 ; Bearce v. Fossett, 34 Maine, 575; Mitchell v. Roclcland, 41 Maine, 363.
    
      B. Bradbury, for the plaintiffs, in reply.
    1. The defendants pleaded the general issue, and performance of the conditions of the bond. The plea of performance is an affirmative plea, and imposes the burden of proof on the defendants.
    
      2. No form is prescribed for a collector’s bond. He is "to give a bond for the faithful discharge of his duty.” The bond of Moan conformed to this requirement. The bond was, in effect, approved by the selectmen, and, if not, the defendants have no right to complain.
    3. This action on the bond can be maintained, although the tax was raised at an illegal meeting, Ford v. Clough, 8 Green]., 335; and although the assessors were illegally chosen. Johnson v. Goodrich, 15 Maine, 29.
    4. Moan’s bond bound him to pay the money he collected " to the treasurer named in his warrant ” James Saunders was named in his warrant as treasurer. To him, Moan paid in part the money he had collected, thereby recognizing his authority. /Cellar v. Savage, 20 Maine, 199; Orono v. Wedgewood, 44 Maine, 50.
   The opinion of the Court was drawn up by

Rice, J.

Debt on a collector’s bond. The bond, the execution of which does not seem to have been contested, bears date August 15, 1854, and, among other things, recites that, "whereas the said Lorenzo W. Moan was duly chosen collector of taxes for the year next ensuing, and make up his collections complete.

" Now if the said Lorenzo W. Moan shall faithfully discharge his duty as collector, and pay in to the treasurer named in his warrant from the assessors, the sums therein nimed, at the, times specified, then this obligation to be void.”

Evidence was also introduced by the plaintiffs, tending to show that a warrant, purporting to have been issued by the fssessors, was put into the hands of the collector, containing t list of the state, county and town taxes, amounting m the iggregate to $1577,69. The record of the assessment was lated June 10, 1854.

Here the plaintiffs stopped, the Court ruling, against the objections of the 'defendants, that a prima facie case had been made for the plaintiff's. It may well be doubted, had the case rested here, whether the action could have been maintained. The plaintiffs had then shown no money in the hands of the collector which had been paid voluntarily by the citizens; nor had they shown that he had been furnished with such a warrant as would authorize him to enforce the collection of taxes. To render him liable upon his bond for omitting to act, they must show that he had been armed with a legal warrant, by which collection could be enforced. When they rested their case, they had done neither that nor shown money in his hands.

The defendants, however, being under no legal compulsion to move, having had no testimony excluded, voluntarily introduced testimony by which it appeared that Moan had, as matter of fact, received the- bills of assessment and had proceeded and collected large sums of money thereon, by the voluntary payments of the citizens, which he contended had been duly accounted for with the town. This’ presented the parties in a new attitude. The question now presented was, whether the money thus voluntarily paid by ■the citizens in discharge of their taxes, had been paid over according to the conditions of the bond. On this point the case finds there was testimony on both sides. And the' Judge, in view of that evidence, instructed the jury that, if the tax payers voluntarily paid their taxes to the collector, he is bound to pay the treasurer de facto the sums collected, and that they should look at the town records, the treasurer’s book containing the account with Moan, the evidence of Saunders, Calkins and Moan, and judge whether there was anything due on the bond; and, if anything,- how much ?

This instruction, in view of the whole evidence, is unobjectionable.

But it is contended that the proceedings of the town weie irregular, informal and illegal. This is manifestly true. It is not often that such a medley of irregularities are exhibited in the proceedings of our municipal corporations. Bu!; the question is, are these irregularities of such a character as to exonerate the defendants from paying over money which they have collected by virtue of those proceedings, from the citizens, and to which they have no title, equitable or legal? The authorities, as well as every moral principle, negative such a proposition. Ford v. Clough, 8 Maine, 334; Johnson v. Goodrich, 15 Maine, 29; Kellar v. Savage, 20 Maine, 199 ; Orono v. Wedgewood, 44 Maine, 49.

But, again, it is said that the bond itself is void, being so vague, indefinite and uncertain that no legal rights or liabilities can be predicated upon it. That the bond is inartificially drawn is manifest; but we think it contains elements sufficient to give it force and validity, especially when taken in connection with the tax bills and other evidence in the case. It bears date Aug. 15, 1854, and recites that Moan was duly chosen collector of taxes for the year next ensuing. The tax bills bear date in 1854, and this evidence tends to show that he was elected in 1854. He also collected the tax of that year. The bond, therefore, must be deemed to have reference to the municipal year 1854. By the terms of the bond he was " faithfully to discharge his duty as collector.” This required him to pay over the money which the actually collected, and which in equity and good conscience belonged to the town. The defence is technical in its character, and though the defects in the proceedings of the town are numerous, they are not of such a character as will authorize the defendants to take refuge behind them and thereby enable their principal to hold money to which he is not entitled. There is no evidence that the bond has been altered since its execution. Indeed that ground of defence as contained in the specifications has been erased.

Exceptions overruled. — Judgment on verdict.

Tenney, C. J., Appleton, Cutting, May and Kent, JJ., concurred.  