The main question which the defendants make in this case, is, whether a town collector of taxes is responsible "for the payment of the taxes collected by him, to the several public officers, to whom he is directed to pay by his warrant, though the moneys thus collected have been stolen from his possession without any fault, want of care or omission of duty on the part of such collector.
It is supposed that the principle was decided in favor of the defendants in the case of The Board of Supervisors of Albany v. Dorr and others, (25 Wend. 440.) (a) It is insisted by the de*236fendants that they are only liable for the misfeasance or neglect of Shattuck in discharging the duties imposed by virtue of his office and the statute—and that he ought to be regarded as the depositary or bailee for hire of the money collected by him, and not as a debtor for the amount collected.
The statute (1 R. S. 346, § 19) requires that “ Every person chosen or appointed to the office of collector, before he enters on the duties o£ his office, and within eight days after he receives notice of the amount of the taxes to b'e collected by him,-shall execute to the supervisor of the town and lodge with him a bond, with one or more sureties to be approved by such supervisor, in double the amount of such taxes, conditioned for the faithful execution of his duties as such collector.” The bond is required to be filed within six days thereafter in the office of the county clerk, who is required to'make an entry thereof in a book to be provided by him, in the same manner in which judgments are entered of record; and the statute declares it shall be a lien on all the real estate held jointly and severally by the collector or his sureties within the county, at the time of filing 1 thereof, and shall continue to- be such lien till its condition, together with all costs and charges which may accrue by the prosecution thereof, shall be fully satisfied. The statute (1 R. S. 398, § 6) makes it the duty of every collector, within one week after the time mentioned in his warrant for paying the moneys directed to be paid to the town officers of his town and to the county treasurer, to pay to Such town officers and county treas-' urer the sums required in such warrant to be paid to them respectively, first retaining the compensation to which he may be legally entitled. In payment of such moneys, the town officers to whom paid are required to deliver to the collector duplicate receipts therefor, one of which is required to be filed by the collector with the county treasurer, which entitles him to a credit in the book of the county treasurer for the amount therein stated to have been received; and no other evidence of such payment can be received by the treasurer. Section 10 provides, thal if any of the taxes mentioned in the tax list annexed to his war rant shall remain unpaid, and the collector shall not be able tc *237collect the same, he shall deliver to the county treasurer an account of the taxes so remaining due, and upon making oath before the county treasurer, or in case of his absence, before any justice of the peace, that the sums mentioned in such account remain unpaid, and that he has not, upon diligent inquiry, been able to discover any goods or chattels belonging to, or in the possession of, the persons charged with or liable to pay such sums, whereon he could levy the same, he shall be credited by the county treasurer with the amount thereof. The 13th section of the same statute enacts as follows: “If any collector shall refuse or neglect to pay to the several town officers of his town, or to the county treasurer, the sums required by his warrant to be paid to them respectively, or either of them, or to account for the same as unpaid-, the county treasurer shall, within 20 days after the tim,e when such payments ought to have been made, issue a warrant under his hand and- seal, directed to the sheriff of the county, commanding him to levy such sum as shall re- ■ main unpaid and unaccounted for by such collector, of the goods and chattels, lands and teneménts of such collector, and to pay the same to the county treasurer, and return such warrant within forty days after the date thereof: which warrant the county treasurer shall immediately deliver to the sheriff of the county.” The 14th and 15th sections of the act- prescribe • the duty of the sheriff on the receipt of the warrant, and in substance, require the sheriff to execute the warrant and make ■ return to the county treasurer within the time limited by the warrant, and to pay to the treasurer the money, if any, collected, retaining his fees; and in case the sheriff fails to collect the whole amount due from the collector, he is required to state the amount levied, and certify that such collector has no goods, &c., from which the moneys, or the residue can be levied, and in case no part, or only a part, shall bo levied by the sheriff, the treasurer shall forthwith give notice to the supervisor of the town of the amount due from such collector. The 16th section provides that “ The supervisor shall forthwith cause.'the bond of such collector to be put in suit, and shall be entitled to recover thereon the sum due from such collector with costs of suit.”
*238I cannot assent to the proposition that the liability of the collector is limited, by the common law rule applicable to the ordinary case of misfeasance or neglect in the discharge of the duties of office, by a public officer. The provisions of the' statute seem to me to recognize the collector of taxes in the light of a debtor for the amount of the taxes directed to be collected, and to provide the manner in which that obligation is to be discharged: First, by the 10th section it is provided that the collector shall present to the treasurer of the county an account of the taxes remaining due, and which cannot be collected, making oath that the sums mentioned in such account remain 'unpaid, &c., upon which he is to he credited with such amount. Second, by payment to the several officers mentioned in his warrant, the balance remaining after being credited for such taxes as cannot be collected, to be proved as provided by the 10th section. Nothing short of a credit or payment, in my judgment, amounts to the performance of the condition of the bond; and that this is the true construction of the condition of the bond, is evident from the various provisions of the statute. After the neglect or refusal of the collector to collect and pay, and the failure of the sheriff to levy under the warrant of the treasurer have occurred, it is made the duty of the supervisor to put the bond of the collector in suit, and the statute declares that the supervisor, in such case, (1 R. S. 401, § 16,) shall be entitled to recover thereon the sum due from such collector, with costs of suit. The statute imposes a definite liability on the collector and his sure-, ties for the omission to collect and pay, and whether that omission is the result of misfeasance or neglect, unavoidable accident, or felony committed by another, I do not think it furnishes any defence to the action.
It is also objected that the second plea of the defendant Shat-tuck is bad, on the ground that it does not contain any positive averment that, the defendant had collected the money. If the loss of the money, after it has been collected, by theft, is a defence, it must follow that the plea should aver the collection of the money, and the loss of the identical money collected, to enable the plaintiff to take issue on that fact. In this plea, neither *239the collection of the money, or loss of the identical money collected, is averred, though the collection of the money directed to be collected is stated by way of recital. I think the objection to the plea, for that cause, is also well taken.
The first plea of the defendant Shattuck is claimed by the plaintiff to be bad by reason of duplicitybut the defendant insists that that portion of the plea denying that the defendant is indebted to plaintiff, may be regarded as surplusage, and the plea stand. The plea unites non est factum and nil debet. The latter, pleaded alone to debt on bond, is confessedly bad on demurrer. I am unable to see, that its identity is lost, or character changed, on account of its union with nonest factum, and I do not think that it is so harmless as that it may be regarded merely as surplusage.
I think the demurrers to all the pleas well taken. • The defendants must have leave to amend on the usual terms.
' Judgment accordingly.
The judgment of the supreme court in this caso was affirmed by the court for tne correction of errors, in December, 1844.