
    Inhabitants of Wellington vs. Forrest A. Small.
    Piscataquis.
    Opinion April 24, 1896.
    
      Pleading. Tax-suit. Declaration. B. S., c. 6, § 176.
    
    In an action in the name of a town to recover taxes, it is a necessary averment that the selectmen directed in writing the action to be brought. Good pleading requires it to be alleged with time and place, — but the time and place need not be proved as alleged, and are not traversable facts. Their omission is matter of form, which can be taken advantage of on special, but not on general demurrer.
    A declaration, held, otherwise sufficient.
    
      York v. Goodwin, 67 Maine, 260, affirmed.
    On Exceptions by Defendant.
    This was an action of debt to recover taxes due from the defendant to the town of Wellington for the years 1889, ’90, ’91, ’92 and 1898. The declaration contained a separate count for the taxes of each year, and mutatis mutandis were the same. The first count is as follows: — “ . . . for that the said Forrest A. Small on the first day of April, A. D. 1889, at Wellington, was an inhabitant of said town of Wellington and liable to taxation therein, and then and there was the owner of personal property; and then and there Isaac Hutchins, Albert Allen, and John Pease were the duly elected and legally qualified assessors of said town of Wellington, and the said assessors did duly and legally assess upon the poll of the defendant, and upon the personal property of the defendant, as his proportion of the town taxes and the due proportion of the state and county taxes allotted to said town of Wellington for the year then current, the following sums, to wit: upon his poll the sum of one dollar and upon his personal property the sum of seven dollars and ninety-four cents, in all the sum of eight dollars and ninety-four cents. And the said assessors thereafterwards, to wit: on the 12th day of August, A. D. 1889, did make a perfect list thereof under their hands, and commit the same to John M. Small, who was then and there duly elected and qualified collector of the said town of Wellington with a warrant in due form of law, of that date, under tbe bands of said assessors. And tbe plaintiff further avers tbat tbe payment of said tax has been' duly demanded of said defendant by said collector prior to tbe commencement of tbis suit, and tbe municipal officers gave written directions to bring tbis action. Whereby, and by reason of tbe statute in such case made and provided, an action hath accrued to tbe plaintiffs to have and recover of said defendant tbe sum of twelve dollars and nineteen cents.”
    Tbe defendant’s general demurrer to tbe declaration having been overruled, be took exceptions.
    
      H. Hudson, for plaintiff.
    
      JD. J). Stewart, for defendant.
    Counsel argued: (1,) Tbat the declaration should allege tbe whole amount of tax raised by tbe town, each year, as a town tax and tbat it was raised by vote at a meeting legally called and notified. (2,) It should allege tbe defendant’s proportion of tbat amount. (3,) It should allege tbe amount of tbe state tax, and of tbe county tax, and tbe defendant’s proportion of them. (4,) It should allege tbe whole amount of the defendant’s proportion of tbe town, state and county taxes. (5,) Tbat tbe assessment was made upon all tbe taxable inhabitants of tbe town including tbe defendant, each being assessed according to tbe just value of bis property. (6,) Tbat tbe assessors, naming them, were citizens of tbe town, elected at a meeting of tbe voters of tbe town, legally called and notified; and tbat said assessors were sworn previously to assessing tbe tax. (Dresden v. Goud, 75 Maine, 298, 299). (7,) Tbat tbe whole of tbe taxes, thus assessed upon all tbe taxable inhabitants of tbe town, including tbe defendant, were committed to a collector, with tbe proper tax warrant; with a statement showing bow tbe particular collector having such taxes was chosen and sworn, or otherwise authorized to act. (8,) Tbat tbe selectmen of tbe town bad in writing directed tbe collector to commence an action of debt in tbe name of tbe inhabitants of tbe town against tbe defendant; and tbat such direction was given prior to tbe commencement of tbe suit. Orono v. Emery, 86 Maine, 362; Cape Elizabeth v. Boyd, Id. 318, 319; Cilmore v. Mathews, 67 Maine, 519, 520.
    Counsel also cited : Blanchard v. Stearns, 5 Met. 302 ; Ladd v. Dickey, 84 Maine, 194; Bowler v. Brown, Id. 378; Nmi v. Par-7cer, 83 Mainé, 534; Jordan v. Eopkins, 85 Maine, 160.
    Sitting : Petebs, C. J., Fostbb, Haskell, Whitehottse, Wiswell, Stbotjt, JJ.
   Stbout, J.

This is an action of debt to recover taxes assessed to the defendant, and comes before us on general demurrer to the declaration. It contains all the allegations that were in the writ in York v. Goodwin, 67 Maine, 260, which were held by this court to be sufficient. That decision was approved in Vassalboro v. Smart, 70 Maine, 305.

Since those decisions, an amendment of the statute provides that the mayor and treasurer of cities, or the selectmen of any town, or assessors of any plantation, to which a tax is due, “may, in writing, direct an action of debt to be commenced in the name of such city, or of the inhabitants of such town or plantation, against the party liable.” Under this statute, it has been held by this court that no action can be commenced or maintained in the name of the town to recover taxes, unless its commencement is directed in writing by some one of the boards named in the statute. Cape Elizabeth v. Boyd, 86 Maine, 318.

Such written direction being necessary to the maintenance of the action, it must be alleged in the writ. It is a traversable fact, and is put in issue under the plea of the general issue. Orono v. Emery, 86 Maine, 366. Good pleading requires that it should be alleged with time and place, Platt v. Jones, 59 Maine, 240; but time and place need not be proved as alleged, and are not traversable facts, in any case, except in those where they are essential elements in the cause of action. Moore v. Lothrop, 75 Maine, 302. They are not such elements in this case, and need not be proved as alleged, and therefore are not traversable facts, but are matters of form. Advantage can be taken of their omission on special but not on general demurrer. Each, count in this declaration contains the allegation that “the municipal officers gave written directions to bring this action,” but no time or place is alleged. The term municipal officers includes the selectmen. There is enough in the declaration to make it apparent that it was the municipal officers of plaintiff town, by whom the direction was given, and that it was after the assessment of the taxes, and before suit brought.

The statute of 4 Anne, c. 16, which may be regarded as part of our common law, provided “that in all cases where any demurrer shall be joined, etc., the judges shall proceed and give judgment according as the very right of the cause and matter in law shall appear unto them, without regarding any imperfection, omission or defect in any writ, etc., declaration or other pleading, etc., except those only which the party demurring shall specially and particularly set down and express as cause of demurrer; notwithstanding that such imperfection, omission or defect, might theretofore have been taken for matter of substance. . . , . So as sufficient matter appear in the said pleadings upon which the court may give judgment according to the very right of the cause.” Under this statute it was held in Bowdell v. Parsons, 10 East, 359, that when a request to the defendant to do an act was necessary to be alleged to give the plaintiff a cause of action, and it was alleged, without time or place (there being a general venue laid in the preceding part of the declaration), the omission of time and place was matter of form, and was available only on special demurrer.

In Briggs v. Nantucket Bank, 5 Mass. 97, the court say “the venue at common law regulates the process of summoning a jury, who anciently were always returned from the vicinage; but in this commonwealth venues are of no use. In the early days of our law they were not averred. We hold a declaration without a venue or with a wrong one, as bad in form when specially demurred to for this cause.” See also Parlin v. Macomber, 5 Maine, 415; 1 Saunders, 337 b, note 3.

It has been uniformly held in this State, that a definite time and place must be stated in the declaration, as pertaining to the venue, and that their total absence may be taken advantage of on general demurrer. Shorey v. Chandler, 80 Maine, 411. In this case, as in Cole v. Babcock, 78 Maine, 41, no definite time was anywhere alleged. But in the case at bar, each count contains in its commencement an allegation of a definite time and place, and also a definite time of the commitment to the collector, which by relation might be sufficient for the succeeding allegation of the written direction of the selectmen. An additional allegation of the time and place of the selectmen’s act is little more than a repetition, and at best is only a matter of form rather than of substance.

The only defect in this declaration is the omission to allege a time and place when and where the selectmen gave written direction to bring the suit (time and place having been properly stated hi the beginning of each count). Such omission is matter of form only, and cannot be taken advantage of on general demurrer. The entry must be,

Bxceftions overruled.

Demurrer overruled.  