G. L. c. 60, §24]

is eventually obliged to discharge it, the purchaser cannot hold the municipality liable for the collector's negligence1 nor can he escape payment on the ground that the city is estopped from enforcing the lien. He cannot even recover damages from the collector personally unless that official was himself negligent.3

COLLECTION BY DISTRESS

Seizure of Personal Property. — Exemptions

SECTION 24. If a person refuses or neglects to pay his tax for fourteen days after demand, the collector shall without unnecessary delay levy the same by distress or seizure and sale of his goods, except tools or implements necessary for his trade or occupation, beasts of the plough necessary for the cultivation of his improved land, military arms, uniforms and equipments, utensils for housekeeping necessary for upholding life, and bedding and apparel necessary for himself and family.

Distress is defined by Bouvier as the taking of a personal chattel out of the possesion of a wrongdoer into the custody of the party injured to procure satisfaction for the wrong done. It was resorted to in advance of judicial proceedings and in Massachusetts it has been superseded by attachment on mesne process except in the case of beasts at large doing damage, debts due the commonwealth, and taxes. As has been previously stated, distress was the original and primary method to enforce the collection of taxes. In a farming community the simplest and most obvious thing to do, if a resident failed to pay his taxes, was to seize and sell his cattle; but in the more complicated conditions of city life distress of goods is not so available and convenient a remedy.

1

It should be remembered that there is no lien for taxes on personal property and that distress is not the enforcement of a lien. The property seized must be, except as hereinafter stated, the property of the person taxed when it is seized; and it

1 Dunbar v. Boston, 112 Mass. 75 (1873); Alger v. Easton, 119 Mass. 77 (1875).

2 Rossire v. Boston, 4 Allen 57 (1862).

3 Moynihan v. Todd, 188 Mass. 301 (1905).

1 Fuller v. Day, 103 Mass. 481 (1870); McGee v. Salem, 149 Mass. 238 (1889). 2 Fuller v. Day, 103 Mass. 481 (1870).

[G. L. c. 60, §§ 25, 26 need not have been the property on account of which the tax was assessed.

If a person dies without paying his tax, his goods cannot be subsequently seized on distress, but the collector must employ the other methods of collection established by law for such cases.3 Formerly provision was made for distress of stock in corporations; but it has been held that the adoption of the uniform stock transfer act repealed the statutory authority for distress.* Whether securities negotiable by delivery, such as coupon bonds, can be taken on distress is open to some doubt, though there are precedents for such action."

Upon a distress of goods or arrest of the person it is the duty of the collector to make an official return and if properly made it is prima facie evidence of the facts stated therein. If it is impeached by evidence of facts which would equally well justify the collector, the variance is immaterial.'

Detention, Notice and Sale

SECTION 25. The collector shall keep the goods distrained, at the expense of the owner, for four days at least, and shall, within seven days after the seizure, sell them by public auction for payment of the tax and charges of keeping and sale, first posting notice of the sale in some public place in the town at least forty-eight hours prior thereto.

SECTION 26. The collector may once adjourn such sale for not more than three days, and he shall forthwith post a notice of such adjournment at the place of sale.

If the collector holds two tax warrants each of them including an unpaid assessment upon one individual, the collector may make one sale for the whole amount due under both. If the collector buys the goods distrained himself, the owner may avoid the sale.2

The notice of sale may be given either before or after the four

3 Wilson v. Shearer, 9 Met. 504 (1845).

4 Warr v. Collector of Taunton, 234 Mass. 279 (1920).

5 Sears v. Nahant, 221 Mass. 435 (1915).

6 Barnard v. Graves, 13 Met. 85 (1847).

7 Barnard v. Graves, 13 Met. 85 (1847).

1 Howard v. Proctor, 7 Gray 128 (1856).

2 Pierce v. Benjamin, 14 Pick. 356 (1833).

G. L. c. 60, § 26]

7

days have expired, and it need not state the name of the person taxed or the amount of the tax. A general description of the property to be sold and of the place where the sale is to take place is sufficient. If the collector does not hold the sale within the prescribed seven days the proceedings are void ab initio ;" but if he actually sells the goods within the prescribed period the sale is valid although his warrant did not limit the time in which he was to make the sale. When the collector distrains several chattels and sells them separately it is his duty to stop. the sale as soon as enough has been realized to pay the tax and charges and to return the remaining goods to the owner. If goods distrained are sold in an unlawful manner and the collector fails to realize the full amount of the tax, payment of the balance by the owner and acceptance of a receipt for the whole tax is not a waiver of his right of action against the collector for the unlawful sale.9

When the assessment of a tax is wholly void, or the proceedings for its collection are not conducted in accordance with law, and the person assessed refuses to pay the tax and allows his property to be sold by the collector, and the purchaser takes possession of the property, the person assessed may recover back the property from the purchaser by writ of replevin,1o or he may maintain an action of tort against the purchaser, in the nature of trover for conversion of his personal property.

If however there is no actual interference with the owner's possession, an invalid sale of his property for non-payment of taxes inflicts no injury upon him and he consequently has no redress at law.11 11

3 Barnard v. Graves, 13 Met. 85 (1847).

4 Barnard v. Graves, 13 Met. 85 (1847).

5 In Barnard v. Graves, 13 Met. 85 (1847), a description of the property distrained as "one valuable horse" was held sufficient; and in Rawson v. Spencer, 113 Mass. 40 (1873) a description of the property as "about 18,907 feet of oak and walnut lumber" was held sufficient.

6 Pierce v. Benjamin, 14 Pick. 356 (1833); Noyes v. Haverhill, 11 Cush. 338 (1853).

7 King v. Whitcomb, 1 Met. 328 (1840).

8 Cone v. Forest, 126 Mass. 97 (1879).

9 Pierce v. Benjamin, 14 Pick. 356 (1833).

10 Fuller v. Day, 103 Mass. 481 (1870); McGee v. Salem, 149 Mass. 238 (1889).

11 Noyes v. Haverhill, 11 Cush. 338 (1853).

[G. L. c. 60, §§ 27-29 inc

Distress of Stock or Produce to Collect Tax on Land

SECTION 27. If a person is taxed for land in his occupation, but of which he is not the owner, the collector, after demand for payment, may levy the tax by distress and sale of the cattle, sheep, horses, swine or other stock or produce of such estate, belonging to the owner thereof, which, within nine months after such assessment has been committed to him, may be found upon the premises, in the same manner as if such stock or produce were the property of the person so taxed; but such demand for payment need not be made if the person on whom the tax is assessed resided within the precinct of the collector at the time of the assessment, and subsequently removes therefrom and remains absent three months.

Return of Surplus to Owner

SECTION 28. The collector shall upon demand give a written account of every sale on distress or seizure and charges, and pay to the owner any surplus above the taxes, interest and charges of keeping and sale.

COLLECTION BY ARREST AND IMPRISONMENT

When Arrest is Authorized

SECTION 29. If a person refuses or neglects to pay his tax for fourteen days after demand and the collector cannot find sufficient. goods on which it may be levied, he may take the body of such person and commit him to jail until he pays the tax and charges of commitment and imprisonment, or is discharged according to law; but a person committed for non-payment of a poll tax shall not be detained in jail more than seven days.

Arrest was one of the earliest methods adopted in Massachusetts of enforcing the payment of taxes and is still in frequent use. The statutory provision authorizing arrest and commitment to jail has been little modified in recent years except that the limitation in favor of persons committed for non-payment of a poll tax was added in 1893.

Arrest is not the primary method of enforcing payment and can be resorted to only after the collector upon reasonable search

G. L. c. 60, 30, 31]

has failed to find sufficient goods to levy upon;1 but if he asks the delinquent to show the goods and the latter fails to do so the collector has made sufficient search to satisfy the statute.2 If the delinquent shows sufficient goods he cannot be arrested although more than fourteen days have elapsed since the demand.3

In an action against a collector for unlawful arrest his return is prima facie but not conclusive evidence in his favor.* In such an action evidence of the plaintiff's manner of life in jail is admissible in his favor on the question of damages if it is not contended that he was treated with unusual severity;" and evidence that he was confined in the only place of detention in the town is admissible in favor of the collector."

Notwithstanding the hardship, the words of the statute are too plain to allow the court to discover an exception in favor of non-residents, and they are equally with residents subject to arrest. The abolition of imprisonment for debt did not affect imprisonment for non-payment of taxes.

Certificate of Arrest. Discharge

SECTION 30. A collector who commits a person to jail shall give to the keeper thereof a certificate signed by him, stating that he has committed the person for non-payment of his tax for fourteen days after demand therefor, and for want of goods and chattels whereof to make distress, and setting forth the amount said person shall pay for said tax, interest, charges and fees.

SECTION 31. On request of a person committed to jail for nonpayment of a tax, the jailer shall forthwith inform the court having authority to examine poor debtors that the debtor desires to take the oath for the relief of poor debtors. The court shall thereupon ap

1 Lothrop v. Ide, 13 Gray 93 (1859); Hall v. Hall, 3 Allen 5 (1861).

2 Kerr v. Atwood, 188 Mass. 506 (1905).

3 Lothrop v. Ide, 13 Gray 93 (1859).

4 Lothrop v. Ide, 13 Gray 93 (1859); Kerr v. Atwood, 188 Mass. 506 (1905). In Snow v. Clark, 9 Gray 190 (1857), the officer's return stated that he made diligent search for goods to levy on, and arrested the plaintiff. It was held sufficient as it was obvious from the return taken as a whole that the officer failed to find the goods.

5 Hall v. Hall, 3 Allen 5 (1861).

6 Kerr v. Atwood, 188 Mass. 506 (1905).

7 Snow v. Clark, 9 Gray 190 (1857).

8 Appleton v. Hopkins, 5 Gray 530 (1855).