Drowne v. Stimpson, 2 Mas. Rep. 445. Melvin v. Bridge, 3 Mas. Rep. 305. Drowne v. Stimpson, 2 Mas. Rep. 445. Drowne v. Stimpson, 2 Mas. Rep. 445. Drowne v. Stimpson, 2 Mas. Rep. 443. Pembroke v. Abing. ton, From our own reports, but little can be collected on this subject; however, what can be obtained shall be communicated. 1. One distinction observable between a writ of certiorari and a writ of error is this, a writ of error lies when the proceedings are according to the course of the common law, and not otherwise; whereas a certiorari lies only where the proceedings are not according to the course of the common law Certiorari therefore is the proper writ to quash the proceedings of the sessions relative to a highway, when such proceedings are erroneous. : 2. Another distinction is, that when the record and the parties are before the court by writ of error, when the writ ought to have been certiorari; in such case, the court may nevertheless quash the proceedings: But if a record is removed by certiorari, when it ought to have been by writ of error, the reverse is not true. 3. A certiorari may remove the record, in any stage of the proceedings; whereas a writ of error lies only after judg ment. 4. On a writ of error, the court may render the right judgment; whereas on a certiorari, the court can only af firm or quash the proceedings. 5. A writ of error is a writ of right, and grantable ex debito justitia, and therefore there is no occasion to petiDrowne v. Stimpson, tion for it; but a certiorari lies only at the discretion of the 2 Mas. Rep. 142. 2 Mas. Rep. 445. Commonwealth v. 3 Mas. Rep. 188. court. 6. Upon a writ of error, an assignment of errors and a scire facias are necessary: But upon a certiorari, an order of notice issues, and upon the return of the record, the court will inspect it, and, if they find errors, they will quash the proceedings. TITLE XXXIII. COLLECTORS OF TAXES. 1. THE choice of collectors; their oath of office; the penalty which these officers incur on refusal to appear and take such oath, or to serve in such office; and herein of the proceedings in such case. 2. Proceedings in case any town or district neglect to choose a constable or collector, or where a plantation neglects to choose a collector. 3. The power and duty of collectors in relation to unimproved lands of non-residents, and improved lands of proprietors living without the commonwealth. 4. Duty of collectors in certain cases, previous to the advertisement of non-resident proprietors' land for sale, for non-payment of taxes. 5. Of their power and duty in relation to persons taxed for real estate in their possession, but who are not owners thereof. 6. Of their power and duty where owners or tenants of improved lands do not reside where such lands lie. 7. Of their power and duty in reference to persons who refuse to pay their taxes. 8. Of their power and duty in reference to tax-debtors who are about to remove from the commonwealth, and whose taxes are made payable at two or more times of payment. 9. Of their power and duty, in case a tax-debtor absconds. 10. Of their power and duty in reference to tax-debtors who have deceased, removed, or intermarried. 11. Their power to command aid when impeded in the execution of their office; and herein of the liability of such as refuse their aid. 12. Their duty to exhibit accounts of moneys collected; and herein of the penalty which they incur for the neglect of such duty. 13. Their liability for neglecting to make a seasonable collection and payment of moneys to the treasurer and receiver general. 14. Their liability for neglecting to make a seasonable collection and payment of moneys to the treasurer of any county, town, plantation, district, precinct or parish. 15. Of a treasurer's execution or warrant of distress against a collector; the sale of property under it; at what time such execution is to be returned; duty of the sheriff holding the same to pay over the moneys thereby collected: The sheriff's liability for neglect in this particular. 16. Proceedings in case a collector absconds, having in his hands assessments unsettled. 17. Proceedings where constables or collectors have had rates committed to them, and have removed, or are about to remove from the commonwealth. 18. The fees of collectors*. 19. What property is exempted from distress. 20. What shall be deemed sufficient evidence that a collector has posted notifications for the sale of lands. 21. Power of a preceding collector to finish his collections after a succeeding collector is chosen. * 1. For the liability of a collector where the town suffers through his deficiency. See Assessors, title 15, page 140. 2. For his power and duty in reference to the collection of school Ibid. p. 132. taxes. 3. The power and duty of assessors in relation to collectors, when such collectors are taken on a treasurer's execution. Ibid. p. 135, 136, 137. 4. The power and duty of assessors in relation to such collectors, as, from insanity or infirmity, are unable to discharge their duty: Also their power and duty in case of the decease of a colIbid. p. 137, 138, 139. lector. 5. The power and duty of assessors on failure of a deficient colJector to satisfy a warrant of distress issued against him by the treasurer and receiver general. Ibid. p. 139. I. The choice of collectors; their oath of office; the penalty which these officers incur on refusal to appear and take such oath, or to serve in such office; and herein of the proceedings in such case. Stat. 1785, c. 70, sec. 1. In what case consta 1. COLLECTORS OF TOWNS AND DISTRICTS. The qualified voters of any town or district, at the same time they choose constables, may, if they see cause, likewise choose some meet person or persons to be collectors of the rates or taxes that shall be assessed upon such town or district, and agree upon what sum shall be allowed and paid unto bles are collectors ex such collector or collectors for his or their service; but if such collector or collectors, so to be chosen, shall refuse to oath, serve, or if no collector shall be chosen; then the constable or constables of such town or district shall collect and gather such rates and taxes. officio. For form of collector's see Append. No. 10. Stat. 1786, c. 10, sec. 1. voters. 2. COLLECTORS OF PARISHES AND PRECINCTS. The inhabitants of each respective parish and precinct, who Qualifications of shall pay in one tax, exclusive of the poll or polls, a sum equal to two thirds of a single poll tax, shall, in the month of March or April, annually, meet and assemble together At what time collecat such time and place, in the same parish or precinct, as tors are chosen. they shall be notified to attend by the collector thereof, or such other person as the assessors thereof shall appoint to notify the same. And the said inhabitants shall then and there, by a major vote, by ballot, or such other method as they may determine convenient, choose (among other officers) a collector. In what manner. Stat. 1786, c. 10, sec 1. And no person in commission for any office, civil or military, church officer, member of the council, senate, or house of representatives, for the time being, nor any one from serving in this who has served in the office of constable or collector of any town, district, parish, or precinct, within the term of seven years, shall be obliged to serve in the office of collector. And every person, chosen to the office of collector, and not exempted as aforesaid, if he be able in person to execute the same, and of the same denomination of christians 13 office. Stat 1786, c. 10, s 1. Penalty for refusing to take the oath, or to serve in this offee. Stat. 1786, c. 10, s. 1. On refusal of this office, the parish, etc. to proceed to a new choice. as those of the major part of the parish or precinct who shall choose him, who shall refuse to take the oath to that office prescribed, and to serve therein, shall forfeit and pay to the use of the same precinct or parish, the sum of three pounds. And the person chosen collector shall, if present, forthwith declare his acceptance or refusal, and, in case of nonacceptance, the parish or precinct shall proceed to a new choice; and so from time to time, until one shall accept, and be sworn. And any person present, who shall be so chosen, and who shall not declare his acceptance of the office of collector, or who shall neglect, after being summoned by a constable or any other person whom the clerk or assessors may appoint for that purpose, before the clerk, to take the oaths of office, for the space of seven days next administered by the after being notified or summoned, as aforesaid, (which oath, the clerk for the time being is authorized to administer) and Oath of office to be parish clerk. Form of oath, See Append. No. 10. How the fine for not serving may be recovered. Stat. 1785, ch. 70, sec. 12. Plantations empower ed to choose collectors. Penalty on refusal to serve in such office. shall neglect to pay the fine aforesaid, may be compelled to pay the same, by the same mode of process, in the court of sessions, that fines may by law be recovered of persons refusing to serve in the office of constable. 3. COLLECTORS OF PLANTATIONS. All plantations which shall, from time to time, be ordered by the general court to pay any part or proportion of the public taxes, are fully vested with all the powers that towns in this commonwealth, by law, are vested with, so far as relates to the choice of collectors; and any person who shall be chosen to the office of collector of taxes in any of the aforesaid plantations, and shall refuse to accept of the office to which he shall have been elected, or neglect to take the oath by law See Append. No. 10. required to be taken by collectors of taxes in towns, shall be liable to the same penalties, to be recovered by the plantation for the use thereof, in the same way and manner as are provided by the stat. 1785, c. 70, s. 16, in the case of collectors refusing to accept such office when chosen by parishes or precincts. For form of oath, How recoverable. |