A collector of taxes is a public officer, and his powers and duties generally are defined in the Pub. Sts. c. 12. Dunbar v. Boston, 112 Mass. 75. The provisions of this chapter imply that taxes are to be collected in money, and that, if they are not so collected, the collector may levy the same by distress and sale of goods, or, if he cannot find sufficient goods, then by arrest and imprisonment, and taxes assessed on real estate may also be levied by a sale of the real estate, and in certain cases the collector may maintain an action of contract to recover taxes as for his own debt. A collector is liable to the town or city for all taxes on the tax list committed to him which by his .fault he does not collect. Colerain v. Bell, 9 Met. 499. But the power which a collector has by statute of compelling the payment of taxes, he holds for the benefit of the town or city whose collector he is. If he dies, resigns, or is removed from office, and another collector is appointed, the new collector has the same power to collect all the taxes on the tax list which remain unpaid.
- The check under our laws was not an assignment of the funds in the bank to the extent of the sum of money for which it was drawn, and the plaintiffs still remain entitled to receive on the whole amount of the deposits standing to their credit the dividends which have been declared by the receiver of the bank. As between merchants, a check is usually to be considered as conditional payment, that is, as payment if it is in fact paid. If it is not paid we think that the original cause of action is not discharged unless the check has been taken as absolute payment. If the check is not seasonably presented, and the bank meantime fails, the drawer of the check cannot be held upon the check, *142and the person whose duty it was to present the check for payment may become liable for the damages which the drawer suffers thereby, if he suffers any damages, but these may be less than the amount of the check. We are of opinion that the statutes contemplate that taxes should be paid to the collector of taxes in money; that if the collector, for the convenience of tax-payers or of himself, receives checks, in the absence of any agreement to the contrary, they are to be taken as conditional payment, and that if they are not paid the claim for taxes is not satisfied, but that the taxes can still be collected according to law. If the collector has been negligent in presenting a check whereby the drawer has suffered loss, it may be that he is personally liable therefor. We express no opinion whether on the facts of this case the check was seasonably presented, so as to absolve the collector or the treasurer from liability to the drawers for damages suffered by the failure of the bank.
Bill dismissed.