"The tax list is the warrant of the sheriff to collect the taxes, and it should be authenticated by the official certificate of the clerk, as a true copy of the original list, filed *170 and recorded in his office. The list ought to be so authenticated, as not only to satisfy the sheriff that it is a copy of the original, but also appear upon inspection, to the citizens, to be official evidence of their liability. It would seem of necessity that a mere copy of the list, not purporting to state what it is, nor whence it comes, nor by whom made, would not answer the purposes intended by the legislature, but that the nature of the document should be stated under the hand of the clerk at least; but at all events it was not sufficient here, as it was not authenticated by either the certificate of the clerk, or by the oath of a witness, as a copy; nothing more appearing but that the clerk delivered the book to the sheriff, and said it was a copy.' Where the statute requires the list to be delivered to the collector on or before a given day, a delivery afterwards confers no authority upon the officer to proceed and collect the taxes.1 So, where a day is fixed for the delivery, and it is delivered before the time arrives, the collector has no authority; for, up to the time fixed for delivery, the tax-payer has a right to inspect the list, with a view to the correction of errors in the assessment. Besides, the authority of the collector being special, it does not attach until such time as the law fixes for its commencement. A statute of New Hampshire required a copy of the invoice, from which the assessment was made, to be recorded or left in the town clerk's office. This was omitted, and it was held, that until this requirement was complied with, it was illegal to proceed in the collection of the taxes.2 The statute of Vermont required a recital of the title, and time of passing the act under which the tax was levied, in the warrant to collect; where the time was misrecited, the warrant was held void.3 Such are the adjudications upon the question of authority to 1 The Proprietors of Cardigan v. Page, 6 N. H. 182. 2 Id. collect, treated as a distinct fact in the series of acts which are regarded as essential to the validity of the proceedings. * 171 In the chapter relating to the authority of the officer to sell the land as delinquent, the subject will be renewed, and more fully explained and illustrated by the authorities. This chapter might be regarded as useless, but for the fact, that in some of the States, the power to sell the land is vested in the hands of a different officer from the collector. In all such cases, it is apparent that the power to collect, and the power to sell, are distinct acts, each of which must exist, or the entire proceedings must fall to the ground. CHAPTER VIII. OF THE DEMAND OF THE TAX. THE mere assessment of a tax upon land does not create a debt against the owner. It cannot be garnished, attached, or seized in execution at the suit of a creditor of a municipal corporation. Nor is it a "judgment or contract" which may be set off against the claim of a creditor of a city, within the meaning of the Massachusetts statute.2 [In the absence of any statutory provision allowing interest, it does not draw interest, even after a demand.3] It may be laid down as an universal rule in the collection of a tax assessed upon the land of resident owners, that the person or personal estate of the delinquent is the primary fund out of which the tax must be paid. A sale of the land itself is a dernier resort. The tax is never so far regarded as a debt, in order to charge the body or goods of the person against whom it was assessed, until a demand has been made, upon the person taxed, by the collector.4 In Thompson v. Gardner,5 which was an action of assumpsit by a collector to recover a tax assessed against the defendant, the plaintiff proved a regular assessment of the tax, but failed to prove that he had ever demanded it of the defendant. The court gave judgment for the defendant, saying, "a * default in not paying on demand was necessary to be *173 1 Egerton v. Third Municipality, 1 La. Ann. 435. 2 Peirce v. City of Boston, 3 Met. 520; Camden v. Allen, 2 Dutcher, 398. 3 Shaw v. Peckett, 26 Vt. 482. 4 Bott v. Perley, 11 Mass. 169; Bonnell v. Roane, 20 Ark. 114; Green v. Craft, 6 Cush. (Miss.) 70; Rathbun v. Acker, 18 Barb. 393. 5 10 Johns. 404. shown. It would be an alarming doctrine to say that a collector of taxes might sue immediately every person upon his assessment roll, without first demanding payment of the taxes." It would be equally alarming to permit the collector to seize and imprison the body, or distrain and sell the personal estate of a citizen against whom a tax has been assessed, without notifying him that the tax is due, and demanding the payment of it. The tax-payer must be in default before he can be regarded as a delinquent, and these summary and extraordinary powers, with which the collector is armed, are resorted to. He cannot be in default until he is notified of the tax, and has an opportunity of paying it. If, after a notification is given and a demand made, he neglects or refuses to satisfy the tax, then the power of coercion attaches, and not before. A condemnation without a hearing, or an opportunity of one, would be contrary to natural justice; and it ought not to be presumed that the legislature intended that the summary power of collecting taxes by imprisonment of the body, and distress and sale of the goods, or land of the person assessed, should be arbitrarily exercised by the officer charged with their collection. [In Jones v. Burford,1 it was held that if a tax-payer once duly tenders payment of his tax, and the collector declines to receive it because he has been enjoined by a court of chancery from collecting the taxes of that year, in a suit to which the tax-payer is not a party, if the injunction be subsequently dissolved, the collector cannot proceed to sell the land, without making a new demand for the tax, after such dissolution of the injunction.] In Ives v. Lynn,2 it was objected to a tax sale, that personal notice, or other reasonable and sufficient warning of the assessment of the tax had not been given, and that no demand of payment was made. The statute required the col* 174 lector to * appoint a time and place for receiving taxes; and in case of failure, to distrain the goods of the delinquent. The contemporaneous construction of this statute, 串 and long and universal usage under it, authorized a notice by publication on the sign-post of the town. It was proved that this usage had been complied with in this case, and the court maintained the sale. The principles to be extracted from all of the decisions upon this subject, may be thus stated: 1. Where the statute, under which the proceeding takes place, expressly requires a notification and demand, the requisition must be complied with. 2. Where the statute is silent upon the question of notice and demand, it must be construed according to the principles of natural justice, which enjoins a personal demand before the person assessed can be regarded as in default. 3. Where the statute does not expressly require a demand of the tax, but authorizes the collectors to appoint a time and place for the payment of the taxes upon his list, and give general notice thereof by publication in a newspaper, or by posting the notice in some public place, a personal notice may be dispensed with. A failure to comply with the requirement of the law in this respect, will render a sale of land for taxes void.1 Under the Illinois statute, the provisions of which have already been recited, it has been held, that a report of the delinquent list by the collector, to the circuit court, in the form prescribed by law, is evidence of a demand, and authorizes the rendition of a judgment upon the list, though the form is silent as to whether a demand was or was not made, and the collector failed to state the fact in relation to a demand.3 The contrary was held by Judge Pope, District Judge of the United States Court in Illinois, upon the construction of the same * statute. It is an open question under this stat- 175 ute, whether, on proof that no demand was in fact made 1 Johnson v. McIntire, 1 Bibb, 295; Thompson v. Rogers, 4 La. 9; Parker v. Rule's Lessee, 9 Cranch, 64; Jackson v. Shepard, 7 Cow. 88; Burd v. Ramsay, 9 Serg. & Rawle, 109; Thompson v. Gardner, 10 Johns. 404; Ives v. Lynn, 7 Conn. 505; Mayhew v. Davis, 4 McL. 213. 2 Ante, p. 26. 3 Taylor v. People, 2 Gilm. 349; Job et al. v. Tibbets, 5 Gilm. 382. 4 Mayhew v. Davis, 4 McL. 213. |