Town of Charleston v. Stacy , 10 Vt. 562 ( 1838 )

The opinion of the Court was delivered by

Collamer, J.

This was an action of assumpsit against the defendant, as collector of taxes ; alleging that certain tax bills were delivered to him for collection, which he promised to collect and pay over, and neglected. The second count alleged tire same facts, adding, that he collected the same but neglected to pay over to the treasurer. To this there was a demurrer. In the county court judgment was rendered for the defendant, to which the plaintifls excepted.

It is first insisted, for the defendant, that the plaintiffs cannot sustain this action, as a remedy is given by statute, that is, by a process before a justice. That is, however, merely summary and cumulative. There is a similar summary mode for the state Treasurer, who may issue his extent against a sheriff, &c. for taxes; yet, the court decided in Treasurer v. Kelsey et al. 4 Vt. R. 371, that an action could be sustained against the sheriff.

The action of assumpsit is an action ex contractu. It can be sustained only for the breach of a contract or promise, express or implied. The duty of a collector, like that of a constable, sheriff, highway surveyor or other ministerial officer, arises entirely from the law, and is not matter in contract ; and for the neglect of such duty, case is the proper remedy. As the correct result of the authorities, Chitty in his pleadings, Vol. 1. P. 137, speaking of the action on the case, says, “ it is the only remedy against sheriffs, justices or other officers, acting ministerially.” The officer’s promise to do his duty, does not change or increase his obligation created by law. It remains the same, and paramount to any contract. This, we think, is fully sustained by authority ; and is settled law in this state, since the case of Walbridge et al. v. Griswold, 1 D. Chip. R. 163.

When an officer has collected money on an execution, an action may be sustained against him therefor, in assumpsit, witllollt alleging his official character or duty. This arises from the general principle, that whoever has my money, and however he may have received it, is answerable to me, in assumpsit, therefor. But this must be in assumpsit express or implied, in consideration of having received the money. This declaration contains no such count. The Only promises alleged are on receipt of the tax bills, and cover his whole official duty. The second count alleges, indeed, that he received the money, but alleges no promise in consideration thereof.

Judgment affirmed.

Redíueld, J., having presided in the county court, on the trial of this case, did not sit.