Commonwealth v. Carson , 26 Pa. Super. 437 ( 1904 )

Opinion by

Rice, P. J.,

1. The condition of the bond given by the tax collector upon which this suit was brought was that he “ shall well and truly collect and pay over and account for according to law the whole amount of taxes charged and assessed in the duplicates which shall be delivered to him during the year ending April 1, 1899.” ■ Section 11 of the Act of June 25, 1885, P. L. 187, provides that: “The accounts of the collectors of taxes shall be settled by the township or borough auditors of the proper township or borough, and he shall state a separate account for each different tax collected by him.” That, as a general rule, the auditor’s settlement of a tax collector’s account is admissible in evidence, both as against him and against his sureties for the year in question, is clear. See Com. v. Gruver, 13 Pa. Superior Ct. 553, and Com. v. Sweigart, 9 Pa. Superior Ct. 455, and cases there cited. But it is claimed that in this particular case, the settlement should not have been admitted, because it appeared on its face that in arriving at the balance with which they charged him, the auditors included a balance of $502.50 found due from him in the audit of his account for the preceding year, for which the sureties on the bond in question were not liable. This objection was .not sufficient to prevent the admission of the report in evidence; at the most, it simply entitled the defendants to have the jury instructed that as to this item there could be no recovery because it was not covered by the bond: Com. v. Sweigart, supra. This was conceded by the plaintiff’s counsel, and the court so instructed the jury,

2. The defendants offered in evidence certain portions of the auditor’s settlement of the collector’s account for the year ending April 1, 1900, “ for the purpose of showing that in 1899 there was considerably more paid than the amount of the duplicate of that year, and that the same would then apply on the prior year.” In that settlement appeared two credit items, “amount paid treasurer, $784.95” and “amount paid county, $300.” These, together with the other credits allowed him, exceeded the amount of taxes with which he was charged for that year by $790.42. The court treated this as an overpayment, and charged the jury that, after deducting therefrom $550.52, the sum applied in liquidation of the balance found due in the audit of the collector’s account for the year 1897, the remainder, $287.90, should be applied in reduction of the amount adjudicated to be due from him in the audit of his account for the year 1898. These instuctions seem to be in harmony. with the theory which the defendants entertained at the trial, as shown by their statement of the purpose for which the defendant’s evidence was offered. But they now claim that the two credit items $784.95 and $300 should first be applied in discharge of the balances found due in the audit of the accounts for the years 1897 and 1898. Two answei’s to this contention are suggested. One is that the question of their applicability to the account of 1899 was impliedly adjudicated in the settlement of that year; in other words, that they were applied as the debtor presumably intended them to be. But, assuming this not to be so as to the item $784.95, the objection remains that there is no evidence whatever that he had a right, even if he had claimed it at the time the payment was made, to have the item “ paid county $300 ” treated as a payment to the poor district upon the account of any other year than that in which it was credited. We must assume in this collateral proceeding that he was entitled to bring it in as a credit in the settlement of his accounts for that year, but that is as far as we have a right to go under the evidence. Leaving this item out of consideration, the result of the application of payments under the instructions of the court was slightly more favorable to the defendants than if the theory for which they now contend had been adopted.

3. The court instructed the jury that the plaintiff was entitled to recover interest on the balance which remained unpaid at the time of trial from the date of the filing of the auditor’s report. In this there was no error of which the defendants have just cause to complain: Glover v. Wilson, 6 Pa. 290; Com. v. Porter, 21 Pa. 385.

All the assignments of error are overruled and the judgment is affirmed.