The collector is liable for taxes which he might have collected by reasonable diligence, but which, by reason of his negligence, having been left uncollected, have been lost. So he is liable for taxes for which he has receipted without receiving payment.2 Where, however, he has discharged his duties, and been guilty of no negligence, he is not liable for sums which he has not actually received.3 He is not liable for taxes which it was to make such payment. See also State v. Harper, 6 Ohio St. 607; 67 Am. Dec. 363. But it has been held in Ohio, that when the legislature passes an act exonerating such officer and his sureties from the payment of such money, and directs that a tax be levied in the territory upon which the loss must fall, to meet the deficit, such act is not forbid. den by the constitution, state or federal. Board of Education v. McLandsborough, 36 Ohio St. 227; 38 Am. Rep. 582. The collector cannot be said to be without fault or neglect, if there has been previously an omission, without exonerative cause, to discharge any duty, the performance of which, as and when required, would have prevented the money from being subject to loss by robbery. If there was such a failure of duty, the condition of the bond was then broken, and such default of the collector, co-operating with the robbery, contributed to the loss ce money. State v. Houston, 78 A 579; 56 Am. Rep. 59; Bevans v. 13 Wall. (U. S.) 56; Halliburton v. Ú. Š., 13 Wall. (U. S.) 63. 1. Pittsburg v. Tabor, 61 N. H. 100; Richmond v. Brown, 66 Me. 373; Marlar v. State, 62 Miss. 677; Governor v. McEwen, 5 Humph. (Tenn.) 241. And see State v. Britt, 8 Heisk. (Tenn.) 298; Prince v. Britt, 8 Heisk. (Tenn.) 290. A township committee has no power to direct the township collector not to collect a tax which, although illegal, has never been set aside. If, therefore, he fails to collect such a tax, the direction of the committee constitutes no defense to the suit of the township on his official bond. Painter v. Blairstown, 43 N. J. Eq. 317. In Colerain v. Bell, 9 Met. (Mass.) 499, it was held that in case of the removal of the collector from office, he and his sureties are liable for such part of the taxes committed to him as are lost by reason of his remissness, even though the uncollected portion thereof has been committed to his successor, who has also given bond for the faithful discharge of the duties of his office. 2. McLean v. State, 8 Heisk. (Tenn.) State v. Britt, 8 Heisk. (Tenn.) 22; 298. And see Jackson County v. Gullatt, 84 Ala. 243; Mc Williams v. Phillips, 51 Miss. 196; Olean v. King, 116 N. Y. 355. Under the Vermont Gen. Sts., ch. 84, § 64, the collector is accountable to the town for all of an abatement not allowed to him by the selectmen, without regard to previous custom. And under section 65 of the same chapter, he is accountable in like manner for the excess of the state tax remaining in his hands after satisfying the warrant of the state treasurer, and the non-payment thereof constitutes breach of his bond. Essex v. French, 50 Vt. 413. a 3. See State v. Daspit, 30 La. Ann. 1112; Gutches v. Todd County, 44 Minn. 383. In Com. v. Masonic Temple Co., 89 Ky. 658, the court held that under Gen. St. Kentucky (ed. 1873), ch. 92, art. 8, §§ 3, 8, which impose a liability on the collector for all taxes collected, and give the commonwealth a lien on his land therefor, which shall not be discharged until he has obtained a quietus, a sheriff was entitled to a quietus for taxes with which he had become chargeable during his term, but which he had been enjoined from collecting by order of court. In School Dist. v. Tebbetts, 67 Me. 239, it was held that, the fact that money, which accrued from the sale of a district schoolhouse, and which was shown to have been finally disposed of in accordance with the vote of the district. although it had gone through the town treasurer's hands contrary to the vote of the district, before reaching its destination, had been duly accounted for, the town treasurer could not be held liable to the district a second time for it. Treasurers v. Hilliard, 8 Rich. (S. Car.) 412. But the insolvency or want of ability to pay is no defense to a suit on the collector's bond, when he not his duty to collect ; nor is he liable where the warrant would not have protected him had he proceeded under it.2 (2) The Accounting.--The collector must make out his accounts and settle with the state at the time 3 and with the formalities prescribed by law. He can receive nothing but money in pay. ment of taxes, unless he is expressly permitted by statute to receive something else, and, in the absence of such a provision, nothing but money will be received from him in settlement of his accounts.5 The collector is not authorized to use his office for purposes of speculation, such as buying up demands against the public to has failed to execute his warrant of distress, or otherwise exhausted his power. Gorham v. Hall, 57 Me. 58; Colerain v. Bell, 9 Met. (Mass.) 499. 1. See West Baton Rouge v. Morris, 27 La. Ann. 459; Lincoln v. Chapin, 132 Mass. 470. A superseded tax collector and his sureties are liable only for the amount collected by him, and not accounted for; and in a suit to recover the same, the amount must be proved by the state. State v. Daspit, 30 La. Ann. 1112. But he is liable even for taxes of a preceding term if he has collected them. Haley v. Petty, 42 Ark. 392. Where the sheriff has failed to file the list of delinquent taxes until after the time prescribed by law, the collector is not liable for uncollected taxes. Gutches v. Todd County, 44 Minn. 383. 2. Reynolds. Lafton, 18 Ga. 47; Boothbay v. Giles, 68 Me. 161; Cheshire v. Howland, 13 Gray (Mass.) 321. And see Barlow v. Sumter County, 47 Ga. 639. It must be established that the collector has been legally authorized to collect the taxes, or that he has collected them. Machiasport v. Small, 77 Me. 109. In Williamstown v. Willis, 15 Gray (Mass.) 427, it was held that a denial by the officer that any warrant was committed to him for services, authorizes proof that a warrant so committed was void on its face. In State v. Atkinson, 107 N. Car. 317, it was held that a constable could not escape liability for failure to col lect taxes committed to him, upon the ground that the warrant and list contained no direction to collect. 3. Moeng v. People, 138 Ill. 513. Account for and Pay Over.-The statute and the condition in a treasurer's bond requiring him to "account for and pay over" moneys, do not create two distinct grounds of liability; but the accounting is merely preliminary to the payment. Franklin v. Kirby, 25 Wis. 498. 4. See Petitt v. State, 8 Heisk. (Tenn.) 320; Wood v. State, 8 Heisk. (Tenn.) 329; McLean v. State, 8 Heisk. (Tenn.) 22; Simmons v. Boullt, 26 La. Ann. 277; State v. Powell, 40 La. Ann. 241. Under the Nebraska statutes, it is only where the county commissioners fail to settle with the treasurer, and allow him credit for uncollectible taxes, and for errors in the tax lists, that the county clerk has authority to examine the lists and correct them. Eatherly v. State, 14 Neb. 287. 5. Miltenberger v. Cooke, 18 Wall. (U. S.) 421 ; U. S. v. Morgan, 11 How. (U. S.) 154; Johnson v. U. S., 5 Mason (U. S.) 425; Smith v. Speed, 50 Ala. 276; Crutcher v. Sterling, 1 Idaho 306; Askew v. Columbia County, 32 Ark. 270; Sheridan v. Rahway, 44 N. J. L. 587; Frier v. State, 11 Fla. 300; Šimmons v. Boullt, 26 La. Ann. 277. see Lawson v. Pulaski County, 3 Ark. 1; Wellington v. Lawrence, 73 Me. 125; Sawyer v. Springfield, 40 Vt. 305. And In McLean v. State, 8 Heisk. (Tenn.) 22, the court held that Tennessee bank notes receivable by the state in payment of taxes, if received by the collector and not paid over, must be accounted for as money, at their face value; and so of county warrants. In Orneville v. Pearson, 61 Me. 552, it was held that, if a person who was collector for consecutive years, paid money, without any appropriation on his part, to the treasurer, who applied it to the oldest liability, having no notice that the money came from the assessments of any particular year, it cannot afterwards be applied by the collector to his liabilities for the subsequent year, even though collected from the taxes of that year. And even where the stat use in his settlement with the state. ute directs that such demands are receivable for taxes, they cannot be used in accounting, unless they were actually received by the collector in making his collections.2 A settlement is not conclusive evidence of a proper accounting, but mistakes in it may be shown.3 Settlement, in the absence of statutory provision, must be made within a reasonable time after collection.4 Where the collector delays payment after the time for settlement, he is chargeable with interest. Penalties may be imposed upon the collector for failure to pay over. 1. Frier v. State, 11 Fla. 300. And see Elliott v. Miller, 8 Mich. 132; Smith 7. Speed, 50 Ala. 276. In Cheshire v. Howland, 13 Gray (Mass.) 321, it was held that payments made by a collector of taxes in behalf of the town, and allowed to him by the town in account, cannot be again allowed him in an action by the town on his official bond. 2. Com. v. Rodes, 5 T. B. Mon. (Ky.) 319; Simmons v. Boullt, 26 La. Ann. 277; Vermilion Parish v. Brookshier, 31 La. Ann. 736. But see Askew v. Columbia County, 32 Ark. 270. The right of debtors to the State of Virginia, to discharge their debts in the state's tax-receivable coupons, is not available to a tax collector who has collected taxes which he has not turned over, nor to the surety on his official bond. Burgess v. Winston, 28 Fed. Rep. 559. In Com. v. Rodes, 5 T. B. Mon. (Ky.) 318, the court held that, notwithstanding the collector's tender at the treasury, and in court of warrants on the treasury, made receivable for taxes, which were refused by the treasurer, the state was entitled to recover the amount of her demand against the collecting officer. 3. Moore County v. McRae, 89 N. Car. 95; State v. Brewer, 64 Ala. 287; People v. Cooper, 10 Ill. App. 384; Justices v. Fennimore, 1 N. J. L. 190. And see Kilpatrick v. Pickens County, 66 Ala. 422; Kinney v. State, 4 Ill. 357; Washington County v. Parlier, 10 Ill. 232; Wellington v. Lawrence, 73 Me. 125; O'Neal v. Washington County, 27 Md. 227. In Allbright v. Governor, 25 Tex. 687, it was held that a comptroller's statement of accounts is not evidence in an action against the collector. In Adams v. Farnsworth, 15 Gray (Mass.) 423, it was held that in an ac tion to recover sums of money not included in the treasurer's account, he may show errors in the account tending to balance the omission without pleading them in his answer or in set-off. 4. Houston v. Russell, 52 Vt. 110. Where the statute required the collector to pay when the law should direct, while the bond required him to pay when the county commissioners should by law direct, the court held that there was no material difference, and that payment to the treasurer was in law payment to the county commissioners. Frownfelter v. State, 66 Md. So. Where a collector has paid money into the treasury, on account of taxes collected, before he is legally required to account, the payment has relation to the time when he is legally required to pay. Wyman v. Smith, 45 Me. 522. 5. Sheridan v. Stevenson, 44 N. J. L. 371; Glover v. Wilson, 6 Pa. St. 290. And see State v. Van Winkle, 43 N. J. L. 125; State v. Lacey Tp., 42 N. J. L. 536; State v. Lott, 69 Ala. 147; Brunswick v. Snow, 73 Me. 177; McLean v. State, 8 Heisk. (Tenn.) 22; Hartford v. Franey, 47 Conn. 76; Wheeling v. Black, 25 W. Va. 266; Hawkins v. Minor, 5 Call (Va.) 118. In the absence of testimony showing when the amount sued for actually came into the hands of the collector, or that he was in default before the end of the fiscal year, that would be the date from which to charge interest against him. Cordray v. State, 55 Tex. 140. In Gaskins v. Com., I Call (Va.) 194, it was held that interest will not be computed upon the damages recovered against a public collector, until after judgment. 6. See Carnall v. Crawford County, 11 Ark. 604; Lawson v. Pulaski County, 3 Ark. 1; Smith v. Speed, 50 Ala. 276; State v. Lewenthall, 55 Miss. 589. c. REMEDIES AGAINST DEFAULTING COLLECTOR-(1) By Action (a) The Right to Maintain.—A state or municipality may pursue a delinquent collector for moneys collected and not paid over, or for failure to collect, by suit at common law; or suit may be brought upon his official bond.2 As there is an adequate remedy at law, a bill in equity will not lie against a collector.3 Demand or notice to pay is unnecessary as a foundation for an action against him.4 A penalty may be imposed without notifying the collector of the adjustment, as it constitutes part of the preliminary proceedings that may be conducted ex parte, and any objection for want of such notice should come from him when summoned to show cause; and if want of knowledge is shown by him, as to the penalty, and is disallowed as a defense, he should spread it on the record bill of exceptions. Carnall v. Crawford County, 11 Ark. 604. See also Christian v. Ashley County, 24 Ark. 142. Where a penalty is imposed on a tax collector for failure to account, it is a legal incident, and need not be specially claimed in a declaration against him and his sureties. State v. Lewenthall, 55 Miss. 589. 1. Adams v. Farnsworth, 15 Gray (Mass.) 423; Baird v. People, 83 Ill. 387; Helvey v. Huntington County, 6 Blackf. (Ind.) 317; Wentworth v. Gove, 45 N. H. 160; Spencer v. Perry, 18 Mich. 394; Richmond v. Brown, 66 Me. 373; Dogan v. Griffin, 51 Miss. 782. 2. Boykin v. State, 50 Miss. 375. And see BONDS, vol. 2, p. 448; PUBLIC OFFICERS, vol. 19, p. 378; SURETYSHIP, vol. 24, P. 714. 3. Hindman v. Aledo, 6 Ill. App. 436; Clinton County v. Schuster, 82 Ill. 137; Ramsey v. Clinton County, 92 Ill. 225; Baird v. People, 83 Ill. 387; Kilgour v. People, 76 III. 548. In Livingston v. Anderson, So Ga. 175, it was held that the sureties of a defaulting tax collector's bond are subrogated to the rights of the state for the uncollected tax, upon settling with the state therefor, and may recover such taxes by appeal to equity, where no legal remedy is provided therefor. In Turner. Teague, 73 Ala. 554, it was held that the statutory lien on the property of a collector for the payment of any judgment which may be rendered against him in his official capacity, is enforcible only in equity. 4. Wentworth v. Gove, 45 N. H. 160; Watson v. Walker, 23 N. H. 471; Hicks v. Burns, 38 N. H. 151; Brewster v. Van Ness, 18 Johns. (Ñ. Y.) 133. Compare Moody v. Mahurin, 4 N. H. 296; Weston v. Ames, 10 Met. (Mass.) 247; Prairie v. Worth, 78 N. Car. 169; Worth v. Cox, 89 N. Car. 44; State v. McIntosh, 9 Ired. (N. Car.) 307; Prairie v. Jenkins, 75 N. Car. 545; State v. Woodside, 9 Ired. (N. Car.) 496; Houston v. Russell, 52 Vt. 110. And see Tappan v. People, 67 Ill. 339; Dodge v. People, 113 Ill. 491; Carnall v. Crawford County, 11 Ark. 604. In Sweetser v. Hay, 2 Gray (Mass.) 49, it was held that if any demand of payment of a sum of money due upon a bond given by the town treasurer and collector of taxes to the selectmen, is necessary, before commencing an action on the bond, the demand upon such treasurer, made by two of the three selectmen and the town treasurer for the time being, after the three selectmen and treasurer have been appointed by the town, a committee to settle with the former treasurer is sufficient. See also Adams v. Farnsworth, 15 Gray (Mass.) 423. Where a collector fails to settle and pay over, at the time prescribed, it is the duty of the county court to adjust his accounts according to the best information that can be obtained; but such adjustment being but a preliminary step, he is not entitled to previous notice. Carnall v. Crawford County, 11 Ark. 604. And suit by the commonwealth on a collector's bond, is sufficient notice. Lehigh Crane Iron Co. v. Com., 55 Pa. St. 448. In Tappan v. People, 67 Ill. 339, it was held that while no demand is necessary in order to recover the amount collected by a collector, if it is also sought to recover a penalty for failure to pay over according to law, demand must be made, penal statutes being required to receive a strict construction. The form of the action may be assumpsit for money had and received; though, sometimes, a special action on the case,2 or, in some cases an action of debt, may be brought.3 (b) How Prosecuted. In the absence of statutory provisions, the proceedings are the same in a tax suit as in ordinary actions.4 The suit is generally required to be brought in the name of the state or municipality imposing the tax,5 and should be prosecuted generally by the officer to whom the money should have been paid over.R 1. Adams v. Farnsworth, 15 Gray (Mass.) 423; Richmond v. Brown, 66 Me. 373. In Hindman v. Aledo, 6 Ill. App. 436, it was held that where it is merely sought to recover a sum of money which the defendant has in his hands, and which is the property of the state or municipality, assumpsit will lie. In O'Neal v. Washington County, 27 Md. 227, it was held that the fact that a collector is responsible upon his official bond for moneys due the state, is no bar to an action of assumpsit for their recovery. In School Dist. v. Tebbetts, 67 Me. 239, it was said by Barrows, J.: "That, under any ordinary circumstances, an action of assumpsit by a school district against the treasurer of a town is not the proper remedy to recover any balance of their moneys which has been paid into his hands as such treasurer, is sufficiently obvious. The broad remark made by the court in Bailey v. Butterfield, 14 Me. 112, and McMillan v. Eastman, 4 Mass. 378, that an action of assumpsit, as implied by law, is never a proper remedy against a public officer for neglect or misbehavior in his office, might, under some unusual and peculiar condition of things, need qualification. See Adams v. Farnsworth, 15 Gray (Mass.) 423. But, ordinarily, a special action on the case, setting forth the particulars which constitute the default or misfeasance, or, in some cases, an action of debt, has been deemed the proper form." 2. School Dist. v. Tebbetts, 67 Me. 239; Bailey v. Butterfield, 14 Me. 112; Charleston v. Stacy, 10 Vt. 562. 3. School Dist. v. Tebbetts, 67 Me. 239; Bailey v. Butterfield, 14 Me. 112. 4. See Tappan v. People, 67 Ill. 339. 5. See Snyder v. State, 21 Ind. 77; Pepper v. State, 22 Ind. 399; 85 Am. Dec. 430; Fry v. State, 27 Ind. 348; Taggart v. State, 49 Ind. 42; Neal v. State, 49 Ind. 51; Scotten v. State, 51 Ind. 52; Cabel v. McCafferty, 53 Ind. 75; Caldwell v. Fayette County, 80 Ind. 99; Vanarsdale v. State, 65 Ind. 176; Solano County v. Neville, 27 Cal. 465; Tappan v. People, 67 Ill. 339; Dodge v. People, 113 Ill. 491. The recovery is in trust for the district by which the tax was levied. Tappan v. People, 67 Ill. 339. An official bond is not a 66 contract for the payment of money," within statutory provisions requiring actions on such contracts to be brought in the name of the party really interested. Morrow v. Wood, 56 Ala. 1. See Skinner v. Bedell, 32 Ala. 44; Rouse v. Moore, 18 Johns. (N. Y.) 407; Galway v. Stinson, 4 Hill (N. Y.) 136; Looney v. Hughes, 26 N. Y. 514. Under the Alabama Code, § 163, the official bond of a tax collector is properly made payable to the state, and an action thereon may be maintained by the county, as the person injured, on account of the default of the collector. Dudley v. Chilton County, 66 Ala. 593. In Wake County v. Magnin, 78 N. Car. 181, the court held that an action upon the official bond of a county treasurer for the recovery of money belonging to the school fund of the county, collected by him and not paid over, is properly brought in the name of the board of commissioners of the county. 6. See Clifton v. Wynne, So N. Car. 145; Gauntt v. State, 81 Ind. 137; Walton v. Jones, 7_Utah 462. In Gibson County v. Harrington, I Blackf. (Ind.) 260, it was held that county commissioners may sue a delinquent tax collector, even though the collector of the county is required to pay over to the county treasurer, and not to the county commissioners; but that they must assign non-payment to the county treasurer as a breach of the collector's duty. In North Carolina, to recover an amount due the county by a county treasurer, the action should be brought |