Ward v. Richardson

Barrett, J.

The plaintiff’s obligation for the tax, which he was directed to collect from the defendant, was that of a debtor to the town (Muzzy v. Shattuck, 1 Den. 238; Looney v. Hughes, 30 Barb. 608). As such, he was compelled to pay that which it was the duty of the defendant, in the first instance, to have paid to him for the town. He was thus compelled to pay the defendant’s debt. Upon well settled principles he is therefore entitled to recover.

It is no answer to the plaintiff’s claim to say that he might have absolved himself from his obligation by stating under oath his inability; to collect or distrain. As the pleadings stand it is to be assumed that such a statement could not have been truly made, and if the plaintiff might have levied upon sufficient property, but failed to do so, the defendant cannot profit by the omission. The material fact is that the defendant has been entirely freed from his debt to the town, owing to the payment of such debt, compulsorily, by the plaintiff.

The plaintiff must have judgment; upon the demurrer with costs, but "with leave to the defendant to answer over upon payment of such costs to be adjusted.

There was no appeal.