Pratt's Appeal from Probate

Pardee, J. Prom the facts detailed we cannot say that Gustavus Pratt authorized his son to make any contract for him or in his name with the selectmen of Essex in 1868 ; the son merely said that at a subsequent time his father would make one for himself. In Packer v. Benton, 35 Conn., 343, this court said that an undertaking by a person not before liable, for the purpose of securing or performing the same duty for which the party for whom the undertaking is made continues liable, is within the statute of frauds and must be in writing. The' oral statement of Gustavus Pratt to the town meeting comes within the terms of this definition! and must be declared void. When the rate-bill for 1868 was given to the collector, namely, on the 2d day of February, 1869, there was due from him to the town, and unpaid on the rate-bill for 1867, the sum of $2,530.54; between the 2d and 19th of February, 1869, he paid over to the town treasurer the last named sum, which at his request was credited to him by the treasurer on the books of the town, on the rate-bill of 1867. This sum was collected on the rate-bill of 1868. When the collector received the rate-bills and warrants annexed, he became obligated to pay over to the treasurer of the town, within the time prescribed in the warrants, all moneys due and owing to the town upon the rate-bills entrusted to him. The specific money received by him in the collection of taxes is his money, and not that of the town; payments made. by him from time .to time must be treated as payments from his own funds ; being collector for 1867 and 1868, and it being his duty to settle and pay over for both of those years, he [197] liad a right to, and did, appropriate certain payments made in 1869, at the time they were made, to the year 1867. This being the case, and the payment thereof having been received and credited by the town on account of arrearages of taxes of 1867, it cannot be said to be such a misapplication of payment that it should be withdrawn from its original application and applied to the taxes of 1868. Coleraine v. Bell, 9 Metcalf, 503; Sandwich v. Fish, 2 Gray, 301; Redfield v. Shaver, 50 Maine, 44; Lyndon v. Miller, 36 Vermont, 332. Therefore the estate of Gustavus Pratt, deceased, is not liable to the town of Essex upon his suretyship upon the rate-bill for 1867, because the collector made full payment of all money due thereon; nor upon the rate-bill of 1868, because he entered into no contract of suretyship upon the collector’s bond for that year. This conclusion renders it unnecéssary to consider and determine other questions arising in the case. We advise judgment for the appellant. In this opinion the other judges concurred.