
    Wales E. Packard versus Seth Tisdale.
    A collector of taxes cannot compel payment by suit, except in those cases in which the statute expressly confers that right.
    An action cannot be maintained by a town collector, upon a promise to pay him a tax, in consideration that he will forbear to collect the same in the manner required by law, although by such neglect he becomes liable to account for the tax and actually pays it to the town.
    Exceptions from the ruling of appleton, J.
    This was an action of assumpsit, by the plaintiff as collector of taxes for the town of Ellsworth, to recover of the defendant $286, the balance of his tax remaining unpaid.
    The plaintiff had leave to amend, subject to the defendant’s objection, by the addition of another count as follows : "also, for that said plaintiff was collector of taxes for said town of Ellsworth, and acting in said capacity for the year of our Lord 1856, and as such, had in his hands for collection, a tax assessed for said year upon real estate, taxed to said Tisdale in said town of Ellsworth, and in pursuance of the authority to him given, was about advertising said real estate for the non-payment of taxes, in the month of October, A. D. 1857, and within the time prescribed by law for the advertisement thereof: and said defendant then and there requested said plaintiff to forbear advertising the same, and to put himself to no trouble about the same, and then.and there promised said plaintiff^that he would pay Mm the said tax on demand, and now said plaintiff avei-s that, relying on said promise, he forbore, as requested, to advertise said taxes upon said real estate, and the lien became absolved from the same, and he became liable to pay the same to the town, and assumed the same to himself to pay, and did pay and account therefor, to wit — the sum of $286, by means of which said defendant became liable to pay the plaintiff the said sum on demand, and yet, though requested,” &c.
    The presiding Judge ruled that proof of a promise to pay a collector a tax, in consideration of his forbearance to take the necessary steps toward a collection, as the statute required, would not sustain the action, and directed a nonsuit; to which ruling the plaintiff excepted.
    The questions raised by the exceptions were argued by
    
      Wiswell & Madox, for the plaintiff, and by
    
      JDrinkwater, for the defendant.
   The opinion of the Court was drawn up by

Appleton, C. J.

The general rule is well established that the collector of taxes cannot compel their payment by suit except in those cases in which the right of action is given by statute. Andover Turnpike v. Gould, 6 Mass., 4; Crapo v. Stetson, 8 Met., 393; Shaw v. Peckett, 26 Vermont, 482.

If the plaintiff had paid the defendant’s taxes at his previous request, ho might have recovered the amount thus paid. So, if taxes are paid by mistake, by one not the owner of the land taxed, and the owner promise to pay, the promise and the benefit will be held equivalent to a previous request and the action will be maintained for their repayment. Nixon v. Jenkins, 1 Hilton, 318.

But, in the present case, the foundation of the plaintiff’s claim rests upon his omission to do his duty. It is the only consideration of the plaintiff’s promise. An agreement by a third person to indemnify an officer for neglecting his duty in the service of a precept, being founded on an illegal consideration, is void. Hodsdon v. Wilkins, 7 Greenl., 113. So, a promise to deliver the debtor at a certain time, if the officer will not arrest him. "An express promise to indemnify him against the consequences of his own breach of duty,” remarks Parsons, C. J., in Denny v. Lincoln, 5 Mass., 385, " cannot be valid, neither will the law imply a promise on an illegal consideration.” So a bond given to an officer to induce him to do an act which the law requires of him as a part of his duty, is void. Mitchell v. Vance, 5 Monroe, 529. The consideration of the defendant’s promise was the plaintiff’s neglect to perform his duty.

Whether the collector may not still enforce the payment of the tax by arrest, is a question not now before us.

Exceptions overruled.'

Rice, Cutting, Davis, Kent and Walton, JJ., concurred.  