Richards v. Stogsdell

Worden, J. In 1857 and 1858 George Dittemore was treasurer of Owen county. Certain taxes were due from the [75] defendant, Stogsdell. These taxes, together with some taxes against other persons, Stogsdell paid to Dittemore, as such treasurer, in paper of the Citizens Bank of Gosport, an illegal and void currency. The taxes paid by Stogsdell for other persons were paid by virtue of an arrangement between him and them, for which he afterwards received from them good money. At the annual settlement by the treasurer, in June, 1858, the sums thus received from Stogsdell were charged against said treasurer. Dittemore claims that Stogsdell is indebted to him in the amount of the taxes thus paid by the latter in the currency mentioned, and assigned the account thereof to the plaintiff, who brought this suit to recover the same. On the facts above stated, the Court found for the defendant, and this finding seems to us to have been correct. It may be admitted that the payment of the taxes in the currency mentioned was void and of no effect whatever, and that the treasurer might, notwithstanding such payment, have proceeded to collect them as in other cases. Still it is not perceived that, independently of any statute, Dittemore acquired any personal right of action against Stogsdell. It seems to us that the payment was a nullity; that the taxes yet remained due, and that no implied assumpsit arose from the transaction against'Stogsdell in favor of Dittemore personally. But there is a statute which enacts that, “if any county treasurer, on making settlement with the county auditor, shall stand charged with any tax remaining unpaid, and shall not receive a credit therefor in such settlement, such treasurer may collect such tax for his own use at any time within one year after such settlement, either by distress and sale, as hereinbefore provided, or by action of debt in his own name, before any justice of the peace, or court having jurisdiction.” 1 R. S. 1852, p. 145, sec. 193. The suit in this case, however,. was not brought within the time limited, and must therefore fail. It may be observed that there was an agree [76] ment that all matters of defense might be relied upon without pleading. Wm. M. Franklin, for the appellant. John H. Martin, for the appellees. Per Curiam. — The judgment is affirmed, with costs.