Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1885-01-31

such step is taken, if he cOnceives the
same to be unjust or Illegal, or against
any statute, or TO be unconstitutional,
may pay the same under pro-
test, and under such payment the
officer collecting the same shall pay
such revenue into the State Treasury,
giving notice at the time Of such pay
ment to the Treasurer that the same
was paid under protest. The person so
paying such revenue may at any time
within thirty days after making such
payment, and not longer thereafter,
sue the said officer so collecting such
revenue in the court having jurisdic-
ton of the parties and amounts. If it
be determined that the same was
wrongfully collected, for any reason
going to the merits of the same, then
the court trying the case may certify OF
record that the same was wrongfully
paid and ought to be refunded and
thereupon the Auditor of Public Ac-
counts shall issue his proper warrant
for the same, which shall be paid in
preference to other claims on the Trca-
sury, except such as have priority by
constitutional requirement
In all such cases. if the court certify OF
record that the officer defendant acted
in good faith and diligently defended
the action. the necessary costs incurred
bv him shall be taxed to and paid by
the State, as in criminal cases. Acts
lSSI-'S2, p. 81, ct seq.
The plaintiffs in error were merchants
doing business in this city. and as such
were duly assessed with a license-tax
for the year 1888. amounting to the
sum of 5000 The declaration AYERS
that in payment of this tax they rendered
TO the defendant in error, the Treasurer
of the city of Richmond, the officer
charged by law with its collection, GER
tain genuine paSt-due taX-receiyable
coupons. cut from the genuine bonds of
the State. and receivable for taxes due
the State. amounting to the sum of
5000. The declaration then proceeds as
follows " And the plaintiffs aver that
from thence hitherto they have been,
and still are, ready to pay TO the said
defendant, or to any other person au-
thorized by law to receive the same, the
said sG00 in coupons in full of SAID
taxes and they now bring the same into
court. here ready to be paid to said de-
fendant or to any one authorized by
law to receive the same for the State.
But the plaintiffs aver that the said de-
lcndant then and there, and has at all
times since, refused to receive said 5000
in coupons rendered by them as afore-
said for said taxes. and then and there
demanded payment of the same in
money alonc-yiz: in gold. silver,
United States Treasury notes, or
national-bank notes; and upon said
plaintiffs refusing to pay i'll money
alone, as demanded by the said defend
ant, he, the said defendant, then and
there proceeded to take steps against the
plaintiffs for the collection Of said taxes
in gold, &C.; whereupOn, and within
thirty days before the commencement
of this action, the said plaintiffs paid to
the said defendant. under protest, the
amount of said taxes in money alone
viz. 5000 in gold. silver, United States
Treasury notes, and natlOnal-bank
notes--aS required by the said defend
ant. and reserved the right to recover
the said amount so paid under protest"
etc. In addition to the first or special
count the declaration also contains the
common counts in dSSumpSjt in the
usual form. The defendant denurred,
and the Circuit Court oyerruled the de-
murrcr as TO the common counts, but
sustained the same las TO the whole
declaration and to the first count there
Of" And the plaintiffs not asking to
amend the declaration, it was "conSd-
cred by the court that the plaintiffs
take nothing by their bill. and that the
defendant 70 thereof without day.
etc.
To this judgment a writ Of error was
awarded by ore of the judges of this
court.
The tax in this case being license
tax, the Treasurer was authorized by
law to distrain Cor the same as soon as
assessed, and the assessment list was
placed in his hands for collection. The
special count alleges the tender of tax
receivable coupons in payment of the
tax. the refusal of the officer to receive
the coupons, and that thereupon steps
were taken by the defendant to collect
the tax in money, when payment there
of was made under protest. 1t also
makes pfofert of the coupons ready
to be paid to the defendant or to any
one authorized by law to receive the
same for the State" and, in short, it
sets forth all the facts, the existence Of
which, under the statute, is essential to
the plaintiffs right TO recover. The
statute does not prescribe the nature of
the suit to be brought by the dissatis-
fled taxpayer, but that an action of as
SumpSt for money had and received is
the appropriate remedy there can be no
doubt. 1t has long been settled that
GsSumpst will lie for the recovery Of
money Illegally exacted as tax and
paid under protest, or with notice of an
intention to test the validity of the
claim, unless expressly or implicitly
prohibited by statute. Elliott as.
Swartnout, 10 Pet, 1877; Bend rs.
Hoyt, IL Id, 263; Cary rs. Curtis, 8
How, 236; City of Philadelphia rs.
The Collector, Wall, 700. 1t will lie
in general whenever the defendant has
received money which is the property
of the plaintiff, and which he is obliged
by the ties of natural justice and
equity TO refund.-2 Rob. Pr. new
edition., 449, 473. 1t is true that by
the terms of the statute it is made the
duty Of the officer 70 pay the money,
when collected, into the Treasury, CIV
ing notice that the same was paid by
the taxpayer under protest, when such
is the fact, and consequently it cannot
be said in case like this that there is
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