The removal of the collector from office did not discharge him from liabilities that had already attached for defaults in the duties of the office. In all cases where, by reason of his remissness in enforcing the collections, the tax had been uncollected, and, from a change of circumstances, was unavailable in the hands of his successor, he would be chargeable therewith.

The question of more importance and difficulty arises upon the point taken in the defence as to the liability of the collector for the taxes of those persons who were, at the time of the assessment, poor and unable to pay their taxes. It is said that, as to such, nothing has been lost by remissness of the collector, and his power of committal to jail being taken away from him by his removal from office, he ought not to be charged with the taxes in such cases. The position taken by the defendants on this point has so much apparent equity, and is so far sustained by the general rule as to damages recoverable for a neglect of official duty, that if the question were to be decided upon the principles of the common law, and irrespective of certain statute provisions directly bearing upon it, we should be strongly inclined to hold that. the defendants might show, in avoidance of their liability for certain taxes, that the individuals against whom such taxes were assessed were not, at any time after the tax bill was placed in *503the hands of the collector, of sufficient ability to pay the same, and that a levy of a warrant of distress upon them would have been unavailing. But the statute provisions, found in the acts regulating the collection of taxes, seem too direct and significant to admit of the application of so favorable a prin ciple in favor of the collector. The Rev. Sts. c. 8, § 43, and the “ act to amend the revised statutes,” p. 804. clearly limit the right to abatement of taxes, assessed upon persons unable to pay . them, to taxes assessed upon those who have been committed to prison within one year from the receipt of the tax bill by the collector; except as to such cases as the town may see fit voluntarily to abate as to persons who have been committed after the year. So far as the collector has neglected to commit to prison, within the year after the receipt of his tax bill, he thereby becomes chargeable for the taxes, if the town insist upon his liability, and require payment from him. Assuming, therefore, that the tax bills were in the hands of the collector for the full period of one year before his removal, and that he neglected to commit to prison those who failed to pay their taxes, he cannot now claim a deduction for the taxes of such persons. If he were removed from office before the year had expired, then his liability would depend upon other principles, and he might show, in his discharge, that he had been guilty of no negligence, and that the persons thus taxed had been wholly unable to pay.

The only remaining question is as to the deduction claimed on account of certain sums received by the collector on the taxes for the year 1841, and applied by him in payment of arrearages due from him on the tax bill of the previous year. It is to be remarked that the case stated is not one of a fraudulent appropriation by the payee, in derogation of the rights of sureties. The case discloses no knowledge, on the part of the town, of the source whence the money was derived, which was applied in part payment of the taxes of 1810. Neither is it a case of misapplication of any specific funds which the collector was bound to pay to the treasurer of the town. The specific money received by a collector, in the *504collection of taxes, is his money, and not that of the town. Such being the case, and the payment thereof being received by the town on account of arrearages of taxes of 1840, 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 1841.

[It was ascertained that the collector was removed from office within a year after he received the tax list of 1841; although the contrary was assumed by both parties, when before the arbitrators. The court therefore ordered the award to be recommitted, that the arbitrators might “ hear evidence on the point whether any of the persons taxed were wholly insolvent and unable to pay, so that the town, lost nothing by the default of the collector in not distraining or arresting, or what damage the town actually sustained.” The defendants afterwards waived the recommitment, and judgment was entered on the award, by their consent.]