
    Ruddock vers. Gordon.
    1763.
    A Collector of Taxes cannot maintain an Action to recover them where the Remedy given by Statute is by Distress.
    The Want of Power to maintain such Matter of Abatement.
    RUDDOCK was a Collector of Taxes in the Town of Boston, and brought his Action, which was Trespass upon the Case, for the Defendant’s Tax, upon a general Indebitatus Assumpsit.
    
    There were three Exceptions to the Writ, and Pleas in Abatement. First, to the Looseness of the Account, which was only in general for Tax for the Year 1761; and ’twas said that the Account was Part of the Declaration, and that the Action would not be a Bar to another which might be hereafter for each Tax in particular. Secondly, that the Collector has no Right or Authority to bring such Actions, the Law having pointed out another Way, viz., by Distress. Thirdly, that if any Action lay at all, it should be Debt, and not Case. ()
    
      It was answered to the first, that in the Town of Boston all the Taxes were made up together, and that Tax was a Noun collective, including all, and would be a Bar; that as for the Collector’s Right of bringing this Action, that ought to be considered upon the Merits and not in Abatement; and as for its being Debt, it is merely a Matter in Pais.
    
    
      
      (1) The Rev. Sts. c. 8, § 15, provide that in certain cases the collector “may maintain an action of debt or assumpsit.” And by the St. of 1839, c. 171, the right of action is extended to all cases of a neglect to pay for the space of one year after the tax has been committed to the collector. Gen. Sts. c. 12, § 19.
    
   The Court

ruled unanimously, that the Objection to the Collector’s Power is not Matter of Abatement, but to be try’d upon the Merits. () But the Opinion of the Court being asked by both Parties upon that Point, the Court were of Opinion that they had no such Power, and that this Action can’t be supported. () 
      
      (2) The general principle has sometimes been stated to be, that a perpetual disability in the plaintiff is to be pleaded in bar, but if only temporary, then in abatement. 5 Dane Ab. 693. But this rule has many exceptions; and it seems to be now settled that a perpetual disability, which forever destroys the plaintiff’s right of action, is pleadable either in abatement or bar, (Langdon v. Potter, 11 Mass. 313,) the rule that a plea in abatement must give a better writ having so many exceptions that it can hardly be called a general rule of law. 6 Pick. 369.
     
      
      (3) S. P. Crapo v. Stetson, 8 Met. 393. “A collector of taxes cannot maintain an action to recover them in any case besides those in which an action is given to him by Rev. Sts. c. 8, § 15.” See also 6 Mass. 44.
     