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WINTHROP SOULE. 400 V. [175
Winthrop Soule, executrix, vs. Eliza M. of Inhabitants
another. &
Elijah Crosby. vs. Same 
21, 22, 2, 1899. March November 1900. Suffolk.
Morton, Barker, Hammond, Holmes, J., Loring, & C. JJ. Present: 
— — — — Report Negligence Auditor's Evidence. Bond Town 
report, objected exception admission in evidence of an to the to No lies auditor’s
ground upon that his conclusions first time the were based on incom- for the
petent evidence.
town, discovering in Negligence of a not at an of the officers earlier date the defal-
taxes, discharge will not of the sureties on his cation of its collector bond.
of a sent to the sureties on the bond that the officers town of its collector Evidence
by copies published years, containing a book the town for certain taxes of of
reports copies the and of the of the of auditor treasurer of town printed the for
alleged reports years, which contained false statements as to the accounts those
taxes, quiet inducing steps of the sureties to lie and to no the collector take of
collector, defaulter, until the who was a had from loss protect themselves to
lost, property lien for taxes was his and the uncollected is inadmis- transferred
by on the bond. the town in an action sible
CONTRACT, a bond executed OE upon by actions Two and and as by Elijah Crosby principal E. Everett Crosby
and conditioned for the sureties, faithful as Soule Horatio S.
the of of duties collector of taxes the principal by performance
9, 4 dated November and 1896, Writs town. of the plaintiff
tried in were the together The cases Superior respectively.
J., who allowed a bill of in Sheldon, Court, exceptions before
as follows. substance in case, each
was Everett elected E. collector Crosby duly The defendant
5, 1894, on on March and town August of the plaintiff of taxes
suit. in the bond 15, 1894, gave
of town the- assessors the com- 1894, 20, duly On August
list for a total assessment and tax a warrant to mitted Crosby
of his the entered performance upon $75,039.07. Crosby of
until about as collector continued such and collector, as duties
time he the October, when At 1896, disappeared. of middle the
of the so committed he collected taxes had his disappearance of
to treasurer the town and had over $72,660.34, paid him to

WIUTHROP V. SOULE. 401 Mass.]
and $6,262.28 a balance of collected him $66,398.06, by leaving
to of the on the for. failed collect taxes accounted not Crosby
him, been taxes to list which had committed to tax amounting
$2,507.94. of the town March it was 5,1894, vote passed By
be all taxes re- cent interest voted that six charged upon per
1, 1894, and interest was November due upon maining unpaid
of the date of each writ. this $302.20 taxes at Of the uncollected
the sum of of uncollected taxes and interest $1,464.34 amount
after was David Crosby’s collected disappearance, by Floyd
and town, been collector the elected by charged Floyd having
of of taxes 1894 not col- with the collection the balance the of
The the lected evidence introduced plain- by Crosby. only by
in favor, tiff was the of an auditor its which was filed report
The defendants on before 8, 27,1899, October 1898. February
trial, to for moved the auditor’s amend- recommit report duly
ment, but this motion denied. was The to defendants objected
evidence, this on the admission of in the that it report ground
certain evidence admitted that was and considered appeared by
inadmissible, the which was auditor contended but failed they
evidence, set that to out this so the defendants were unable to
the matter the court. passed have duly upon The by judge
the and overruled admitted the and objection, the report;
defendants excepted.
to The defendants offered that the prove following by-laws
the were in of town force the plaintiff from during period March,
1894, to the date of each writ:
“ first On the of secular each month, and day as often as the
in his amount hands reaches two hundred dollars or upwards,
collector shall over to the the of pay treasurer the town taxes all
shall, and him collected, on or before the seventh by of day
each in make his annual February year, up account and render
the same to the selectmen.
“ At each annual the town meeting shall auditors, choose two
it be whose shall to examine the books and duty accounts of
selectmen, treasurer, collector, the and all other com- special
or officers the mittees of the having charge of expenditure
as soon as after the of close the money, possible financial of year
town, the the and at next town in report detail, under meeting
all the heads, their and respective receipts expenditures by
26 175. VOL.

WINTHROP V. SOULE. 402 [175
for the the the town Said with annual previous year. report,
selectmen, assessors, of the overseers of the sur- poor, reports
committee, treasurer, of town school town highways, veyors
taxes, clerk, collector of fund board of sinking commissioners,
health, the and of shall be superintendent cemetery, printed
the a thereof left at selectmen, and copy dwelling- by every
in four at before town, least, house the annual days meeting,
be and shall delivered to the town clerk.” copies twenty-five
further to that The defendants offered the collector prove did.
over the him manner not turn amounts collected in the by
the nor did the treasurer it or required by by-laws, require
therefor; demand that the town elected auditors the make for
1894, who, 1895, in the of took from a state- Crosby spring year
that he had made of collections and the ment receipts upon
1894; made no whatso- of that the auditors examination taxes
collector, if such an examina- the of the of books although ever
shown that the statement had been it would have made tion
untrue, that a of was and amount then made Crosby larger by
him and had not been turned had collected been by the taxes “ treasurer; that a book The town called to Forty- over the
of the Town of of the Officers Winthrop, Report third Annual
1895,” 1, for the Massachusetts, January published ending year
and in also accordance there- the with by-laws, in accordance
in town, inhabited house the contained at every with delivered
14, 1895, the dated material February the auditors a of report
follows: was as of which •part
“ we examined and that have carefully certify hereby We
selectmen, of the of accounts overseers and books the n compared taxes, clerk, of town and trustees collector treasurer, the poor, and all town of Winthrop, original the of library the of public
the been from have paid which on moneys vouchers and bills
the same and find the during past year, town of said treasury
be correct.” to
of dated collector, the the report contained also book This
sub- the statement identical with was 1895, which 9, January
auditors, he the in which to above stated him as mitted by “ items: Amount of assess- the following with himself charged $53.64; interest, assessments, added warrant, $75,010.67; ors’
the items: himself with following credited ”; and $49.77

WIETHBOP V. SOULE. 403 Mass.]
Ci treasurer, $610.10; $49,531; balance abatements, paid Cash
taxes, $24,972.98.” of unpaid
of The defendants further offered to that a this prove copy
defendant, sent book was to the his at at request, Elijah Crosby,
Chatham, his home in and and he was examined relied him, by
; that this the statements therein another of book upon copy
Florida, was sent to the other in he Soule, where then surety,
him; was, and was examined that Soule died in the by spring
of and the Eliza 1895, defendant M. Soule was execu- appointed
will; trix of his that in 1895 the the town elected year plaintiff
1896, in of auditors, who, the took from E. Everett spring
a statement similar to the that taken auditors of the Crosby by
but made no examination of his previous year, books, although
if such an examination had been it would have appeared made
the that statement was and that more entirely untrue, money
had been collected than was set out in •, the statement that a
“ book called The of Annual the Officers Forty-fourth Report
of the Town of Massachusetts, for the Winthrop, year ending
' 1, 1896,” and delivered in the January published same manner
as the Annual “Forty-third contained Report,” the of report
collector, 8, the dated 1896, which was January identical with
the made him statement to the auditors as by stated, above in
he himself which with the charged items: “Balance following
taxes, $24,972.98; of unpaid interest, $493.60”; and credited
“ the himself with items: Cash' following treasurer, paid
$13,365.60; abatements, $231.57; balance of taxes, unpaid
$11,878.41 ”; and also contained a auditors, certificate of the the
“ material of which was as follows: part We that hereby certify
have we examined the selectmen, treasurer, accounts of the
taxes, collector of trustees of public and fund library, sinking
commissioners, and find same to be correct.”
The defendants further offered to that E. prove Everett
was of certain possessed Crosby real and property, personal,
to the of mentioned; the issuing above prior reports that before
he absconded he encumbered such the execution property by
of and made of the mortgages, to conveyances property per-
sureties; sons other than the that the sureties and the defend-
ant executrix relied the statements upon the town published by
in the and so took no to for reports, the relying steps provide

404 WIKTHROP V. SOULE. [175
his of duties as collector to proper performance and by Crosby
default; themselves the his of protect consequence that against
he did not until for the lien taxes for disappear the 1894 year
the estate of the taxed had that until his upon persons expired;
the defendants and the had testator no or disappearance notice
him; of defalcation or action that any knowledge improper by
the and the testator were the defendants false induced state- by
ments the town to remain until time the of published by quiet
and thus of Crosby’s were the benefit disappearance, deprived
the of collection of a for the while lien taxes enforcing unpaid
existed, thereof and of the of the of enforcement benefit property
; loss to make to his caused defalcation Crosby them good any by
the citizens of the town for taxes for and assessed plaintiff that
1894, October, alienated their after the first of day year property
the 1894, and before could taken to collect action be by Floyd
same, so that lien such was lost. any upon property
evidence, The these if established facts, ruled that judge by
law; to and directed the constitute a defence in would not jury
in each The defendants return for the case. a verdict plaintiff,
alleged exceptions.
Wait, for Eliza M. Soule. W. C.
Dakin, for Elijah Crosby. F. J.
for the F. B. plaintiff. Thayer,
the in 1. to of Barker, The admission evidence exception J.
The is not to the report argued. objection auditor’s report the
evidence, on could based conclusions were incompetent that his
Gilman, time at the trial. Briggs for the first v. taken not be
Wickwire, 162 v. Mass. 143. See Sul- 530. Collins 127 Mass.
367. was 364, Mass. The Arcand, 165 report properly livan v.
admitted.
is to the of a somewhat exception rejection 2. The remaining
of the of on the defendants. Speak- part offer extended proof
be divided into two branches. One may this offer generally, ing
the in of town were officers grossly negligent different is that
of date the defalcation its collector at an earlier not discovering
that such now concedes of the parties Each excepting of taxes.
the collector’s sureties the upon will not discharge negligence
522; Root, Ins. 2 Met. Bank v. Watertown Amherst See bond.
offer the The branch of 85. other Mass. Simmons, 131 Co. v.

405 V. SOULE. WIItTHROP Mass.]
with town, in accordance of the the officers that was to show
of the town’s bond to the copies the sureties on its sent by-laws,
copies and 1896, containing printed 1895 for the book years
town treasurer of the the auditors and of town of the reports
to as statements false contained which reports for those years,
taxes, which false statements of collector of the the accounts
to S. Soule of Horatio the and executrix the sureties induced
from to themselves no to take protect remain and steps quiet
his transferred property, had collector loss until the defaulting
lost. was uncollected taxes and the lien for
was also rightly this evidence that We are of opinion
did not authorize any the the first by-law excluded. In place
the of a than leaving copy the town book other distribution of
least the town four at days in thereof at dwelling-house évery
of and the twenty-five before the annual town meeting delivery
the of to to sending the town clerk. Therefore copies copies
resided, to town where and another one in another he surety
was, in of he then was not the State Florida where done surety
and not of town, in accordance with the the a.ct the was by-law,
or but the of the of selectmen, unauthorized act the who person
sent those so copies.
this, Aside from if we should assume that the were copies
of sent the town, the fair of state- by construction the authority
of town ments book is not the that contended de- for the by
. fendants. The of was the to plain purpose publication merely
to those as interested information to the tenor of the give early
of which were contained in the book. reports copies pub- By
of the the town could not be to copies understood lishing reports
assert that the statements of the and were to invite true, reports
who should receive the those to the truth of copies rely upon
statements. The those was rather an invitation to publication
interested to examine truth statements, all the of those persons
in the nature of must be dealt at which the town with things by
to annual criticise and its and approaching meeting, investigate,
to such as desire own to take their steps they might protect
to the As addressed sureties the collector’s bond, rights. upon
construction to be the the true to them upon placed sending
of the of the if town officers was as the town of copies reports
said, “You are for the had due of the responsible discharge

406 WIETHROP V. SOULE. [175
collector’s He claims, his to duty. have by report, no made
default. town The auditors that his report accounts are
We invite to look into the matter so you far correct. as you
be interested in it and to take such action may as you may
fit.” see Neither the of the nor the sending copies, subsequent
of the the town acceptance reports by can be con- meeting,
strued to be a the town representation to the by that sureties
the of the true, statements were or reports an inducement
to to them their sleép upon rights. The only representation
made the of the town publication book was by that the several
of which it reports, copies contained, were of the tenor therein
set forth. This false, representation was not but true. If it
to be treated" as a is statement of the sureties, town to the that
is the in which sense the sureties had a to only understand right
and it neither it, them, was intended nor to calculated deceive
and does not the case within the of Baker v. bring principle
122, of v. Pick. or 9 8 Met. 511. Briggs, Carpenter King, See
v. 124 Mass. Rice, Bank 72, 76. Savings Fitchburg
did not tend The offered to show evidence that the town had
which it held or released suffered security negligently any any
The whole to contention at the trial lien was that expire. the
the truth of the sureties of the town relying upon reports by
the treasurer had auditors and town lost the to pro- opportunity
the defalcation and themselves tect means by discovering using
themselves out of to secure the defaulter’s and col- property, by
to him the taxes committed for collection. lecting
overruled. Exceptions