32 Conn. 546 | Conn. | 1865
The legal principles examined at some length in the case of Cobb v. Charter, ante page 358, are strictly applicable to the present case.
The tax on account of which this suit is brought is admitted to have been illegal. In satisfaction of it the plaintiff’s bank stock was taken by the collector and sold, and the avails were paid to the town. It requires no argument to prove that for such an injury there should be some redress; and we had supposed it to be an elementary principle that indebitatus assumpsit was the'established remedy. In 1 Swift’s Digest, 405, it is laid down that “ where a person pays taxes that are illegally ■ imposed upon him, whether paid by compulsoi'y process or not, he may recover back the money.” The case of Atwater v. Woodbridge, 6 Conn., 223, is precisely of this character. The tax was illegal and was collected by distress of the plaintiff’s property. The money was paid over to the town and then recovered back in the action of assumpsit. In Adams v. Litchfield, 10 Conn., 127, it was held that “the action of indebitatus assumpsit for money had and received is the appropriate remedy for money collected under an illegal assessment.” Chief Justice Daggett in giving the opinion says:—“ It was made a question whether this action of assumpsit was the proper action to try the question of the legality of the tax. On this point 1 entertain no doubt. The cases are numerous in which actions of assumpsit are sustained.” Amesbury Manuf. Co. v. Amesbury, 17 Mass., 461; Sumner v. Dorchester, 4 Pick., 361; Preston v. City of
In opposition to this current of authorities two decisions in this state are relied upon by the defendants. In Sheldon v. South School District, 24 Conn., 88, it was indeed decided that the money collected on the' illegal tax could not be recovered back. But in that case it was the plaintiff’s land which had been levied upon and sold, or rather attempted to be sold for the payment. The title did not pass, and the money received from the sale of course did not belong to the one who was still owner of the estate. Judge Waite, giving the opinion, expressly declares that assumpsit can be sustained to recover money “ paid without sufficient consideration, to avoid imprisonment, or the seizure or sale of goods.” He makes a distinction between the' case then on trial and that of Adam v. Litchfield, upholding the decision in the latter “ upon the familiar principle that the owner of goods which have been taken and sold by a trespasser might, at his election, waive the tort and treat the wrong doer in making the sale as his agent, and the money received by him as received for the use of the owner.”
Land is not the subject of duress, and the principle of waiving a tort does not apply to a case of disseizin. An action of assumpsit upon the ground that the plaintiff had been wrongfully driven from his farm, and the estate had been seized and sold by a stranger, would certainly be a novelty.
In Goddard v. Seymour, 30 Conn., 394, the taxes were legally laid and assessed, but the proceedings to collect them were irregular and invalid. One of the taxes was paid without question, and the other was collected by a levy upon the plaintiff’s goods. In relation to the first tax the decision in substance was, that the amount of itbeing a debt justly due from the plaintiff to the town, which he was bound to pay without waiting to be called upon, and which he .had paid voluntarily, the town had a moral right to retain it; and the action of assumpsit, being an equitable one, would not lie to recover it back.
We perceive nothing in these decisions inconsistent with what we understand to be the settled law in this state and elsewhere.
A new trial is not advised.
In this opinion the other judges concurred.