officer who received the payment would himself be precluded from raising any question of its sufficiency.1

Payment is an act in pais, which may be proved not only by the record, but by the original receipt;2 and it may also be made out by any other evidence which satisfies a jury of the fact. But payment cannot be shown in opposition to a judicial finding; at least as between the parties thereto and their privies.

A tax collector has no authority to receive anything in payment of taxes but such money as at the time is legal tender or at least passes current. He has no right to receive the promissory notes of individuals, and a bank check is only conditional payment, and the tax will remain in force if the check is dishonored. But a collector who accounts for a tax in his return, on the promise of the party liable that he will pay him,

1 Iowa, etc., Co. v. Guthrie, 53 Ia., 383.

2 Johnstone v. Scott, 11 Mich., 232; McReynolds v. Longenberger, 57 Pa. St., 13; Deen v. Wills, 21 Tex., 612; Seigneuret v. Fahey, 27 Minn., 60. But if one has to prove the legality of the tax, the production of the receipt does not prove it. Clark v. Blair, 14 Fed. Rep., 812. A mistake in the receipt may be shown. Wolf v. Philadelphia, 105 Pa. St., 25.

3 Dennett v. Crocker, 8 Greenl., 239; Hammond v. Hannin, 21 Mich., 374; Mathews v. Buckingham, 22 Kan., 166; Leitzbach v. Jackman, 28 Kan., 524; Rand v. Schofield, 43 Ill., 167; Cook v. Norton, 61 Ill., 285; Adams v. Beale, 19 Ia., 61. An agent has a right to pay taxes for his principal, and if tax officers adopt a rule that they will not receive taxes from an agent, this excuses the agent from making tender. United States v. Lee, 106 U. S., 196; Atwood v. Weems, 99 U. S., 183; Hills v. Exchange Bank, 105 U. S., 319. Payment held to be provable by the collector in opposition to his official return. Davis v. Hare, 32 Ark., 386.

4 Gaylord v. Scarff, 6 Ia., 179; Cadmus v. Jackson, 52 Pa. St., 295; Wallace v. Brown, 22 Ark., 118. But doubtless even a judicial finding may be set aside for fraud on a proper showing in such a case. See Wallace v.

Brown, supra.

5 McLanahan v. Syracuse, 18 Hun, 259; Staley v. Columbus, 36 Mich., 38; Richards v. Stogsdell, 21 Ind., 74. Where, however, the township treasurer received worthless orders in payment of a tax, and the township received them from him and then brought suit against the person taxed, but the statute only provided for suit in case a personal tax could not be collected, it was held the suit was not maintainable. Staley v. Columbus, 36 Mich., 38. Dickson v. Gamble, 16 Fla., 687.

7 Kahl v. Love, 37 N. J., 5. And this even although a receipt was given at the time in reliance upon which a person has bought the land. Ibid. Sce Alkan v. Bean, 8 Biss., 83.

may recover on the promise;1 and perhaps even on an implied promise if the tax was a personal demand. In some states by statute the collector is allowed to account for the tax himself, and then make use of the state's process to compel payment.3 In other states he is simply allowed to bring suit against the party who should have paid.1

Tender of the tax by any one who has a right to make payment is effectual to prevent a sale, whether the tender is accepted or not.5 But a tender, in order to be effectual, must be of the full amount of any single tax; it cannot be of anything less, unless the statute makes provision for payment of a part by itself, as it does sometimes for the benefit of tenants in common or owners of distinct portions of the premises taxed. But where different taxes are brought together for the purposes of a sale for all, the tax payer has a right to pay any one separately, and to contest others."

1 Elson v. Spraker, 100 Ind., 374.

2 See McCracken v. Elder, 34 Pa. St., 239; Shriver v. Cowell, 92 Pa. St., 262; Pontiac v. Axford, 49 Mich., 69. Compare Wallace's Estate, 59 Pa. St., 401; Dickson v. Gamble, 16 Fla., 687.

3 See Jacks v. Dyer, 31 Ark., 334. But in such case the process would not be free from judicial interference under a statute making it so in the first instance. White v. State, 51 Ga., 252.

As to the application of payments made at different times, see Fuller v. Grand Rapids, 40 Mich., 395.

4 Where a statute authorizes a collector to bring suit for the recovery of a tax with which he stands charged in his settlement, he cannot do so by way of enforcing a lien, for the lien is gone when he settles for the tax. He can only recover a personal judgment. Schaum v. Showers, 49 Ind., 285. 5 Schenck v. Peay, 1 Dill., 267; Loomis v. Pingree, 43 Me., 299; Kinsworthy v. Austin, 23 Ark., 375; Tacey v. Irwin, 18 Wall., 549; Jones v. Burford, 26 Miss., 194. When the owner of lands went to the proper office to pay the taxes, and a list was made out for him from which by mistake a road tax was omitted, and he paid all the list called for, it was held that for all purposes of a sale this was equivalent to full payment; that the owner was not bound to take notice of subsequent steps to a sale, and a sale would be without jurisdiction. Breisch v. Coxe, 81 Pa. St., 336.

6 Hunt v. McFadgen, 20 Ark., 277; Heft v. Gephart, 65 Pa. St., 510; Crum v. Burke, 25 Pa. St., 377. If the tax payer wishes to contest any part of the tax less than the whole, he should tender the whole and then bring his suit. Julien v. Ainsworth, 27 Kan., 446.

If a tax is subject to a penalty for delay in payment, but is actually received without the penalty, a sale cannot afterwards be made for the penalty. Bracey v. Ray, 26 La. An., 710.

7 Iowa, etc., Co. v. Carroll County, 39 Ia., 151; Olmsted Co. v. Barber, 31 Minn.. 256.

Return of "No Goods," etc. Where a tax against lands is assessed to a resident, and is a personal charge against him, the statutes, with almost unvarying uniformity, have made the personal property of the person taxed the primary fund for the satisfaction of the tax, and have given a remedy for enforcing payment from it. Until that remedy has been exhausted, no authority exists to go further. It is also customary to allow a certain time after the levy of a tax on non-resident or unseated lands, before any proceedings are taken against the land. To authorize further proceedings in either case, there must be the proper official evidence that in the one case the remedy against the personalty is exhausted, and in both that the taxes are still unpaid. This evidence will consist of such official return, affidavit, or other document by the collector, as the statute may indicate, and it must be made in due form of law and at the proper time. A return made prematurely is void, though it be but a single day before the time; for it shortens to that extent the period allowed to the tax payer for making payment without further cost, and thus deprives him of a legal right. So a return is void which fails to set forth all the facts that the statute requires shall be shown by it.' If the collector is required to demand the tax, his return, it would seem, should show that he has done so; if he is required to make collection by distress and sale of goods, if any can be found to levy upon, there should be such a showing of diligent

I See Thatcher v. Powell, 6 Wheat., 119; Jones v. McLain, 23 Ark., 429; Scales v. Alvis, 12 Ala., 617; Francis v. Washburn, 5 Hayw., 294; Schæffer v. People, 60 Ill., 179; St. Anthony, etc., Co. v. Greely, 11 Minn., 321; Kelley v. Craig, 5 Ired., 129; Harrington v. Worcester, 6 Allen, 576; Huntington v. Brantley, 33 Miss., 451; Sharp v. Johnson, 4 Hill, 92; Ring v. Ewing, 47 Ind., 246. No title can be made to lands on a sale for taxes if personalty is not sought for. Catterlin v. Douglass, 17 Ind., 213. See Abbott v. Edgerton, 53 Ind., 196; Sharpe v. Dillman, 77 Ind., 280: Morrison v. Bank of Commerce, 81 Ind., 335; Volger v. Sidener, 86 Ind., 545; Johnson v. Hahn, 4 Neb., 139; Kittle v. Shervin, 11 Neb., 65; Davis v. Minge, 56 Ala., 121.

In Illinois a tax lien is not divested by the failure of an officer to make due return nor by the appointment of a receiver of the property. Union Trust Co. v. Weber, 96 Ill., 346.

2 Ronkendorf v. Taylor's Lessee, 4 Pet., 349; Hickman v. Kempner, 35 Ark., 505.

Flint v. Sawyer, 30 Me., 226; Hobbs v. Clements, 32 Me., 67. The return will be presumed to have been made at the proper time unless the contrary appears. Mix v. People, 81 Ill.. 118.

4 See Succession of Trainor, 27 La. An., 150, for an analogous ruling.

search for goods, and failure to find them, as would be required of officers to whom executions are committed for service. In other words, the return should show full and complete compliance with all the conditions which, under the statute, are to precede a resort to the land. Such is unquestionably the general conclusion of the authorities; though probably if the statute were to prescribe a form for the return, which was something less full than would otherwise be requisite, a return in conformity to it would be sufficient." But the decisions are justly very rigid in requiring conformity to the statute in the substantial matters of the return,' particularly in the matter of verification, which if omitted or legally defective will leave the return a nullity. There is special reason for particularity

1 A recital in a collector's return that, "not knowing of any goods or chattels," etc., is not equivalent to a return that none could be found. Jones v. McLain, 23 Ark., 429. But it is sufficient, to throw the burden of proof on the tax payer, to show that there was enough of personalty to satisfy the tax. But where he is to make his return from "the best information he could obtain," he is himself the judge of the sufficiency of the information, and the return is prima facie evidence of the facts stated. Andrews v. People, 75 Ill., 605. It is constitutional to make a return prima facie evidence of delinquency, but not conclusive. Andrews v. People, 75 Ill., 605; Burbank v. People, 90 Ill., 554.

2 Belden v. State, 46 Tex., 103; Johnson v. Hahn, 4 Neb., 139; Thompson v. Burhans, 61 N. Y., 52. As to the requisites of a return in Ohio, see Stambaugh v. Carlin, 35 Ohio St., 209. As to what is a sufficient showing of the names of owners of lands, see Halsey v. People, 84 Ill., 89. A personal demand may be assumed when the officer returns that "he has not, upon diligent inquiry, been able to discover any goods," etc. Dickison v. Reynolds, 48 Mich., 158. No return of "no goods" is requisite in Georgia where the tax to be levied is less than $100. Plant v. Eichberg, 65 Ga., 64. Nor does such a return seem to be required in Maryland. Dyer v. Boswell, 39 Md., 465. Nor in New Jersey in respect to the taxes of Newark. Martin v. Carron, 26 N. J., 228; State v. Newark, 42 N. J., 38.

3 Such has been the ruling of the supreme court of Illinois. Taylor v. People, 2 Gilm., 349; Job v. Tebbetts, 5 Gilm., 376, 382. Judge Pope, the federal district judge, held otherwise. Mayhew v. Davis, 4 McLean, 213.

4 See Harmon v. Stockwell, 9 Ohio, 94; Harrington v. Worcester, 6 Allen, 576; Sharp v. Johnson, 4 Hill, 92; Spellman v. Curtenius, 12 Ill., 409; Homer v. Cilley, 14 N. H., 85; Hannell v. Smith, 15 Ohio, 134; Tallman v. White, 2 N. Y., 66; Upton v. Kennedy, 36 Mich., 215. A return not made in the time prescribed by statute, held not to support subsequent proceedings to forfeit the land. Hopkins v. Sandidge, 31 Miss., 668, 676; Weir v. Kitchens, 52 Miss., 74.

5 Harmer v. Stockwell, 9 Ohio, 94; Miner's Lessee v. McLean, 4 McLean, 138; Hogelskamp v. Weeks, 37 Mich., 422; Cotzhausen v. Kaehler, 42 Wis.,

here, since the return, if in conformity to the law, is not only a support to subsequent proceedings, but is evidence, also, in favor of the officer himself.1

Under some tax laws the same officer who collects the taxes is empowered to make sale of the lands of delinquents, though in general that duty is confided to some superior. Where the same officer performs both duties no return is required, though the filing of some official document showing the delinquency is sometimes provided for. Such a document takes the place of a collector's return, and will be governed by the rules above laid down. If none is required by law, the collector is allowed to proceed and sell lands on his own knowledge of the delinquency. How far his proceedings will be open to question afterwards must depend, to some extent at least, on the force given by statute to such report or certificate of sale as he is subsequently required to make, or to the official conveyance.

The proceedings in making sale of lands for taxes, the privilege of redemption, and the conveyance when redemption is not made, require, and will receive, separate consideration.

Penalties for non-payment. In tax laws penalties are imposed for mere delinquencies, in order to hasten payment, and they are also imposed as a punishment for frauds, evasions and neglect of duty. In some cases, also, special inducements are held out to prompt performance of duty, by making deductions in case of early payment.

Penalties are more often imposed under federal than under state laws, and under the internal revenue laws and the laws

332. Want of a venue is fatal. Thompson v. Burhans, 61 N. Y., 52. But the omission of a word where the error is manifest will be overlooked. Scheiber v. Kaehler, 49 Wis., 291. The omission of the affidavit required to the roll in Louisiana does not vitiate the registry. Succession of Edwards and Wilson, 32 La. An., 457.

1 Bruce v. Holden, 21 Pick., 187; Banard v. Graves, 13 Met., 85; State v. Van Every, 75 Mo., 530. See cases cited ante, pp. 185, 186. In Illinois the return is prima facie evidence to support all prior proceedings. Chiniquy v. People, 78 Ill., 570; Mix v. People, 81 Ill., 118; Pike v. People, 84 Ill., 80. 2 As to the conclusiveness of the officer's return, see ante, pp. 261, 262. Also Burbank v. People, 90 Ill., 551; Bowen v. Donovan, 32 Ind., 379; Davis v. Hare, 32 Ark., 356. If the collector is to make his return from "the best information he can obtain," he is the sole judge of the sufficiency of the information. Andrews v. People, 75 Ill., 605.

3 See Sprague v. Bailey, 19 Pick., 436.