If a tax against an individual is not a sum certain *Page 160 due from him to the town, and therefore a debt in the strictest sense of the word, and if it is not also a sum certain which the town has a right to claim, and so a demand, it is quite impossible for me to understand the meaning of the terms. If the town owes the individual a sum of money which is due to him in his own right, and the tax be his own debt, it seems to me that they must be mutual debts and demands. If, therefore, it were not for the provision in Gen. Stats., ch. 208, sec. 8, that "no debt or demand shall be set off as aforesaid unless a right of action existed thereon at the commencement of the plaintiffs' action," there would seem to be no doubt that the set-off ought to be allowed. If by right of action in this statute is meant a right to commence a suit at law, it is clear that the set-off cannot be allowed, and this is the opinion of a majority of the court.
Trustee chargeable.