Inhabitants of Liberty v. Hurd

AppletoN, C. J.,

William Hurd was legally assessed in, and liable to pay the plaintiffs in review, the sum of twenty-two dollars and fifty cents, for the year 1878. This tax he paid to William Lewis, the collector of taxes for that year, in March 1879.

On October 18, 1879, he was arrested by said Lewis, for the non-payment of the above mentioned tax, and to procure his release from arrest, paid the same to the collector and on the same day commenced this suit to recover the sum so paid, against the town of Liberty and recovered judgment by default on the same, of which suit this is a review.

The arrest was unlawful. The collector, Lewis, in making the arrest,, was not an agent of the town, for the tax had been previously paid. He was a mere trespasser and as such is liable. The money was not in the possession of the town or its treasurer when this suit was commenced. The collector had no authority to collect it twice. If, since the original suit was commenced, it has gone into the hands of the treasurer, it will not avail to maintain it.

The action in review is maintained. .The former judgment is to be wholly reversed, and judgment to be rendered for the plaintiffs in review for the amount of the original judgment debt and cost, with interest from its rendition and cost.

WaltoN, DaNeorth, Virgin, Peters and Symonds, JJ., •concurred.