SURETYSHIP continued. in another court and compelled to pay the full penalty, such payment will be a good defence to the first action where the judgment is reversed and the cause sent back for a new trial. Ib. 4. If the surety use due diligence to avail himself of such defence there by proper plea, but be refused leave to plead it, he may come into equity for relief, and the judgment will be enjoined. Ib. 5. And in the circumstances of this case it was held not to affect his right to relief in equity that the principal had put in his hands the means of indemnity for the payment so made. Ib. 6. If the surety of a surety pay the debt assured, he may maintain assumpsit against the principal for money paid. Hall v. Smith, 5 How. 96. 7. In the absence of fraud, accident, or mistake, equity will not give a remedy against the personal assets of a deceased surety in a joint and several bond, where the obligee has lost his remedy at law by electing to take a joint judgment thereon. [MCLEAN and WOODBURY, JJ., dissenting.] United States v. Price, 9 How. 83. Surety Discharge How discharged Forbearance Collateral Security, etc.] The taking of collateral security without suspending the original cause of action will not discharge a surety. United States v. Nicholl, 12 Wheat. 505. 8. 9. Nor will a mere proposition to give time on conditions not complied with. Ib. 10. A resolution by the directors of a bank to suspend the cashier will not discharge his sureties. They will remain liable for any defaults he may commit at any time before actual removal. McGill v. United States Bank, 12 Wheat. 511. 11. Voluntary forbearance towards the principal debtor, which the creditor is at liberty, at any time, to terminate, will not discharge a surety. Creath v. Sims, 5 How. 192. 12. Taking a time mortgage from the principal debtor merely as a collateral security does not discharge the sureties, there being no agreement for a valuable consideration to give time generally. United States v. Hodge, 6 How. 279. 13. To an action against the clerk of a court on his official bond for taking an insufficient injunction bond, a plea that the plaintiff took the bond, put it in suit, and recovered a sum of money in satisfaction thereof, is a good bar; the clerk standing in the position of a mere surety for the original defendants, and of the last and most favored one besides, and so being discharged. Bevins v. Ramsey, 15 How. 179. 14. The sureties in a bond given to procure the release of partnership goods attached on mesne process against the firm, and conditioned for its production if judgment should be recovered against the defendants, are not discharged by a discontinuance as to part of the defendants for want of jurisdiction, if the suit be prosecuted to judgment against the administrator of the other SURETYSHIP — continued. defendant, the judgment being for the partnership debt and the goods being partnership property. Inbusch v. Farwell, 1 Black, 566. 15. An alteration of a bond by the erasure of the name of one of the principals, with the consent of the obligee but without that of the sureties, will discharge the sureties from all liability thereon. Martin v. Thomas, 24 How. 315. 16. Any unauthorized variation in the agree ment of a surety that may prejudice him or substitute an agreement different from that which he entered into, discharges him. Smith v. United States, 2 Wal. 219. 17. Thus, where several sign as surety for a government officer in a bond which by statute must be approved by a judge before the officer enters on the duties of his office, an erasure of one of the names, although made before submission for approval, will avoid the bond as to another surety uninformed thereof who signed at the same time with the one whose name is erased, or afterwards. Ib. 18. A surety is not discharged by a contract between his principal and the obligee, which does not place him in a position different from that which he occupied before it was made. Roach v. Summers, 20 Wal. 165. 19. The liability of the sureties on a bond given by an insurance agent to his principals, conditioned to pay over, is not affected by the fact that the sureties were unaware that the agent was already in default, as he was, and that an agreement subsisted between him and his principals, under which commissions to be earned were pledged for the repayment of his indebtedness, the sureties having instituted no inquiries and no misstatements having been made to them. Magee v. Manhattan Life Insurance Co., 92 U. S. 93. Appeal-bond in Louisiana - Summary Proceeding, etc. See APPEAL-BOND, 5 SURETYSHIP continued. Insolvent Public Debtor charged. See INSOLVENCY, 19. Surety not dis SWAMP LANDS Assessment for Reclamation Due Process of Law, etc.] One whose land, in New Orleans, is subjected to an assessment for draining the swamps of the city, is not deprived of his property without due process of law, within Judgment of Affirmance on Appeal against the meaning of the constitution, when the stat Sureties in Appeal-bond. See APPEAL-BOND, 3, 4. Negotiable Notes Sureties on. See BILLS AND NOTES - IN GENERAL, Parties to Bill by Creditor to enforce Trust See EQUITY-PARTIES, 42, 43. Public Debtor of Payment, etc. Matters. See POWERS, 32. SURVEY Acts. Distillery, under Internal Revenue See INTERNAL REVENUE - PERSONS AND Lands In general. See BOUNDARY. ute requires that the assessment, before becoming effectual, must be submitted to a court of justice, with notice to the owners of property, all of whom have an opportunity to appear and contest it. Davidson v. New Orleans, 96 U. S. 97. 2. An assessment on land benefited by reclamation proceedings had under a statute which, like that of California, makes no provision for notice or hearing respecting the assessment, but which requires that it shall be enforced only by legal proceedings wherein any defence going either to the validity of the assessment or to its amount may be set up, does not deprive the owner of the land assessed of his property without due process of law. Hagar v. Reclamation District, 111 U. S. 701. 3. A state may provide that assessments on be collected in coin. Ib. lands benefited by reclamation proceedings shall ute of March 8, 1871, provides for assessing the 4. A statute which, like the New Jersey statexpense of draining tracts of low, marshy, boggy, or wet lands on the several owners is constitutional, provision being made for notice and an opportunity for hearing. Owners assessed unfor Breach of Embargo and Non-inter-der such a statute are neither deprived of their course Law. property without due process of law, nor are they denied the equal protection of the laws.. Port Surveyor· Right to Share of Penalties See EMBARGO, 38. Public Lands in North Carolina and Ten- Wurts v. Hoagland, 114 U. S. 606. – ASSESSMENT — continued. 4. A statute does not deprive one of property without "due process of law," merely because it TAKING — What a "taking" of Property within does not afford him an opportunity to be present TAX the Meaning of the Constitution. See EMINENT DOMAIN, 6. Assessment of Taxes in general. Collection of Taxes - Sale, Redemption, etc. See TAX COLLECTION. Customs Duties, as Tax · In general. See DUTIES. Decisions of State Court concerning, followed by Federal Courts. See FEDERAL COURTS STATE LAWS, when a tax is assessed against him, or provide that the tax shall be collected by suit; if he can have the collection of an illegal tax enjoined, he is adequately protected, although he is required to give security before an injunction can issue. McMillen v. Anderson, 95 U. S. 37. 5. If a bank claim that it is unlawfully taxed on legal-tender notes of the United States, it has the burden of proving the fact that it is so taxed. Unless affirmatively controverted, the decision of the assessor must stand. New Orleans Canal & Banking Co. v. New Orleans, 99 U. S. 97. 6. Proof that one has acted as an assessor of taxes, and that his return has been sanctioned by the proper officers of the corporation, is sufficient, Direct Tax-In general-What constitutes, without direct proof of appointment, to prove an etc. See DIRECT TAX. Duty of Tonnage, in general - Particular authority to act in that capacity. Ronkendorff v. Taylor, 4 Pet. 349. 7. If the assessor be required by statute to take an oath of office, and to file his assessment and give notice thereof within a certain time, under severe penalties, a neglect to comply therewith will vitiate the assessment, and avoid a sale for the tax. Parker v. Overman, 18 How. 137. 8. In Illinois, a judgment for taxes which does not show the amount in money of the tax for which it was rendered is fatally defective; ASSESSMENT - In general — What nec- and mere numerals, without some mark indicating essary to Validity. See pl. 1-9. Assessment and Equalization of Taxes on See pl. 10-16. 1. In general - What necessary to Validity.] In general, the states have the right to determine the manner of levying and collecting taxes on private property within their limits; and may declare that a tract of land shall be chargeable with taxes, whoever the owner and to whomsoever assessed, and that an erroneous assessment shall not vitiate a sale for taxes. Wetherspoon v. Duncan, 4 Wal. 210. 2. Although differing from proceedings in courts of justice, the general system of procedure for the levy and collection of taxes, in this country, is, due process of law within the meaning of the constitution. Kelly v. Pittsburgh, 101 U. S. 78. for what they stand, is insufficient. Woods v. Freeman, 1 Wal. 398. 9. Where the statute authorizes county auditors to issue compulsory process to bring before them for examination under oath persons suspected of making false returns, and requires that notice be given before an entry increasing an assessment is made, one who appears in response to a subpoena and is informed by the auditor of his purpose to increase the assessment, and who is afforded an opportunity for explanation, and who does not object to the notice, cannot be heard afterwards to object that the notice was not in writing. Surges v. Carter, 114 U. S. 511. 10. Assessment and Equalization of Taxes on Railroad Property.] It is neither in conflict with that provision of the Illinois constitution which declares that taxation must be uniform, nor is it inequitable that the rolling-stock, track, capital stock, and franchise of railroad companies should be ascertained by the state 3. A person is not deprived of his property board of equalization, and state, county, and city without due process of law by the enforced col- taxes collected within each municipality on such lection of taxes, merely because they work hard-assessment, in the proportion which the length of ship or impose unequal burdens. ib. the road within the municipality bears to the TAX ASSESSMENT — continued. whole length of the road within the state. Taylor v. Secor [State Railroad Tax Cases], 92 U. S. 575. 11. The rule which considers the situs of the franchise, rolling-stock, etc., of a company to be at its principal place of business, is merely a rule based on the law of the state which recognizes it, and is, therefore, subject to legislative repeal. Ib. 12. It is no objection to the system that the track, etc., are not assessed in each county according to their value there, but according to the aggregate value in all the counties. Ib. 13. Nor that it provides for a valuation and assessment, although a company may be making no profits and paying no dividends. That is no reason why its tangible property should escape taxation, nor why its franchise may not be deemed to have an actual value. Ib. 14. Want of notice by a state board of equalization of an increase in the valuation of the property and franchises of railroad companies, affords to a company affected by such valuation no ground for contesting the validity of the tax. Such a company is not entitled to special notice, more than an individual. Ib. 15. Where an Illinois railroad corporation had leased a portion of its road to an Indiana corporation, which had been made an Illinois corporation also, and the state board of equalization had assessed the full value of the franchise and property of the lessor corporation as though no lease existed, and fixed the proportion to be distributed among the counties through which the leased road ran, distributing this amount among those counties and charging it against the lessee corporation, it was held that the mode thus adopted conformed substantially to the law of Illinois. Indianapolis & St. Louis Railroad Co. v. Vance, 96 U. S. 450. 16. A statute which provides a comprehensive scheme for assessing taxes on railroad property by a territorial board, which declares that all inconsistent legislation is repealed, and which, although not specially mentioning property in cities as falling within the scheme, does specially mention that in counties, must be deemed to supersede the provisions of a city charter whereunder railroad property located in the city has hitherto been assessed by the local officials. Union Pacific Railway Co. v. Cheyenne, 113 U. S. 516. 1. Injunction Action to recover back-When defeated by Voluntary Payment - When Right to tax may not be questioned. See pl. 52-64. Power and Duty of Collector.] Where a statute requires taxes collected to be paid in to the local treasury, and over to the treasury of the state, in coin, it follows that the collector is authorized to collect them in coin. Lane County v. Oregon, 7 Wal. 71. 2. A tax-collector, when called on to pay over Evidence of Assessment · Official Tax-books. money collected, has no right to refuse because See EVIDENCE-DOCUMENTARY, 23. be conceives that the tax was not rightly laid; and his duty is unaffected by the fact that he has not Levy-Circuit Court Mandamus to compel Levy to pay Municipal Bonds not yet in Suit, given the statutory bond requiring him to pay over. Bell v. Mobile & Ohio Railroad Co., 4 Wal. 598. 3. Sales for Taxes What essential to Valid Sale Advertisement and Notice Sale of all or part of a Tract - Effect of Sale on Tax Lien-Proceedings after Sale.] To sup See MANDAMUS, 6, 7. Lery-Effect on Question of Ratification of See MUNICIPAL BONDS-IN GENERAL, TAX COLLECTION - continued. port a tax sale it must appear that the law was strictly complied with. Stead v. Course, 4 Cranch, 403; Parker v. Rule, 9 Cranch, 64; Thatcher v. Powell, 6 Wheat. 119; Ronkendorff v. Taylor, 4 Pet. 349; Parker v. Overman, 18 How. 137. 4. Thus, if a tax-collector is authorized to sell only enough to pay the tax, and he sell an entire tract when a part would have been sufficient, the sale is void. Stead v. Course, 4 Cranch, 403. 5. In Tennessee, when land is sold on a summary proceeding for non-payment of taxes, it is necessary to the validity of the sale and of the deed that every fact essential to the jurisdiction should appear of record. McClung v. Ross, 5 Wheat. 116. 6. Thus, under the Tennessee statute of October 25, 1797, it should appear that the sheriff had returned that there were no goods and chattels of the delinquent proprietor out of which the tax could be made before the court made the order of sale. Thatcher v. Powell, 6 Wheat. 119. 7. It is essential to the validity of a tax sale that it be conducted not only in conformity with the requirements of the law, but with entire fairness and in perfect freedom from all influences likely to prevent competition. Thus, a sale will be declared invalid if the purchaser declare at the time of the sale that it will be of no use to bid, as the owner will redeem, and so prevent others from bidding against him. Slater v. Maxwell, 6 Wal. 268. 8. Inadequacy of price does not affect the validity of a tax sale. Ib. 9. If the land be not advertised according to law, the sale will be void. Thatcher v. Powell, 6 Wheat. 119. 10. The sale must not be advertised until the whole period allowed for payment has expired. Ronkendorff v. Taylor, 4 Pet. 349. 11. A law requiring notice by advertising once a week for three months is satisfied by publication on any one day in each week during that period, although the interval between some of the publications be more than seven days. Ib. 12. A notice of sale of land "for taxes due thereon up to a certain year is sufficient under a law permitting a sale only when two years' taxes are due and unpaid. Ib. 13. In Ohio, a tax sale is void if the land be not sufficiently described; e. g., if it be listed and advertised only as a certain number of acres in a certain section, without specifying in what part. Raymond v. Longworth, 14 How. 76. 14. Where the law provides that notice of a tax sale shall be published "once in each week for twelve successive weeks," the first notice must precede the sale by twelve full weeks, or eightyfour days, or the sale will be invalid. Earty v. Homans 16 How. 610. | TAX — COLLECTION — continued. 16. Where a tax was assessed on a whole fractional quarter-section, embracing several village lots, and the sale for non-payment was of an acre off the east side," the sale was held void. Ballance v. Forsyth, 13 How. 18. 17. Where a tract of land sold for taxes consists of several distinct parcels, the sale of the entire tract, in one body, does not vitiate the proceeding, if bids could not be obtained on an offer of a part. Slater v. Maxwell, 6 Wal. 268. 18. That provision of the California statute which says that the sheriff in selling property on judgment against it for delinquent taxes shall sell only the smallest quantity which any purchaser will take and pay the judgment and costs, was intended for the protection of the taxpayer, and, like all such directions to officers as are for the protection of the citizen and his property, is not directory but mandatory. French v. Edwards, 13 Wal. 506. 19. In such case, therefore, if the deed of the sheriff recite a sale to "the highest bidder" and for "the largest sum bid for said property," it will be void on its face, and it cannot be aided by the ordinary presumptions, as presumptions are not indulged to sustain irregular proceedings where the irregularity is manifest. [MILLER, J., dissenting.] Ib. 20. A lien for taxes does not stand on the footing of an ordinary incumbrance; and, unless otherwise provided by statute, is not displaced by a sale of the property under a prior judgment. Osterberg v. Union Trust Co., 93 U. S. 424. 21. Where the owner of land sold for taxes and bid in by the state, purchases the state bids before the state's title becomes absolute, the state's lien is merged in the title, and a subsequent conveyance from the state to such owner does not operate to transfer the title, but operates only as evidence that the taxes are satisfied and the lien therefor discharged. Gould v. Day, 94 U. S. 405. 22. A title to land in West Virginia founded on a tax sale made under the code of Virginia before the erection of West Virginia as a state, held void where it was not completed by a survey and deed as required by that code before the repeal by West Virginia of that part of the code which related to such sales. Shutte v. Thompson, 15 Wal. 151. 23. In Iowa, on a sale of land in a county for taxes, where the sales are properly continued from day to day, a sale made on some day to which the sale is adjourned will not be rendered invalid by being recorded as made on the first day of the sale. Callanan v. Hurley, 93 U. S. 387. 24. Tax Sales in Washington.] Under the act of May 4, 1812 (2 Sts. 727), amendatory of the charter of the city of Washington, a sale 15. A part of a lot may be sold for taxes, but if of unimproved lots in the city, for taxes, is illeit be an undivided part, the published notice must gal, unless they have been assessed to the true so describe it. Ronkendorff v. Taylor, 4 Pet. 349. | owner. Washington v. Pratt, 8 Wheat. 681. |