The opinion of the court was delivered by

The order, the amount of which the plaintiff seeks to recover in this action, was received and applied by the collector of the defendant town upon a town tax against the plaintiff, which the collector had in his hands for collection. Subsequently, and while holding the order, the collector failed, being in default or delinquent as to the state tax, which the town was liable to pay. This tax was also in his hands for collection, and his bail were accountable for its payment, as the case finds. For the purpose of securing the bail against their liability, the collector transferred and delivered to one of them the town order in question, together with other securities and property, but which was insufficient for that purpose. Soon after the bail sold and delivered the order to a third party, (for whose benefit this suit is prosecuted,) and applied the money which he received therefor in part payment of the state tax. The transfer of the order by the collector to one of his bail, and by him to the par*309ties in interest in this suit, was in good faith, and without notice, on the part of the hail or present holders of the order, that it was received by the collector to apply in part payment of the plaintiff's town tax. Upon these facts the defendant town claims that the' plaintiff is not entitled to recover.

Town as well as state taxes are payable in money. The statute (Gen. Stat., ch. 15, § 83; ch. 84, §§ 7, 8, 9, 10, 11,) requires their collection in cash, and it provides no other mode by which they can be paid or discharged, either as to the state or town; and the constable’s duty, with reference to a tax in his hands for collection, is similar to his duty with respect to an execution in his hands for that purpose. In the one case his directions are contained in .the wai’rant authorizing him to levy and collect the tax, in the other in the execution, and both are pursuant to law. Neither the town or execution creditor can be satisfied except by payment as required by law, or by an execution of the process, according to its direction by the officer, as he is not the agent of either for any other purpose. Although the constable may discharge a tax without payment as required by the warrant as between him and the party assessed or taxed, yet, if he does, he becomes liable for the amount, and its payment can be enforced against him or his sureties. And if in the collection of a 'tax, he steps outside the provisions .of the statute and his warrant regulating and pointing out the mode of its collection, his act cannot be regarded as official, or as done on behalf of the state or town. Unless this is the correct construction of the statutes relating to the question, practically the collector or constable can discharge the duties of town treasurer which are entirely distinct and independent of those of the collector. But, however that may be, it will not be sei’iously claimed that the collector could, in the way disclosed by this case, pay an invalid claim in the form of a town order, and bind the town. If not, it would seem to follow that if he discharges a tax in the way he did in this case, it must be treated as a personal matter merely,'and cannot be regarded as a payment of the order. ‘The consequence is the order became his, he could transfer it, and upon discharging the tax he became absolutely liable for the amount to the town.

*310But there is another view of the case. It appears that the money for which the order in question was sold to the parties who are prosecuting this suit was paid over and applied to a liability of the town in respect to the state taxes. Having been so paid and applied, and the exceptions not showing that the constable was in default as to the town taxes, the case stands as it would had the collector paid and accounted for the town tax, without reference to the order which he received of the plaintiff and applied to his town tax. Under such circumstances it cannot be reasonably claimed that the town should not pay it. Certainly that would he inequitable.

Judgment of the county court is affirmed.