The case was continued nisi for advisement, at May Term, 1847; and at the succeeding October Term, the opinion of the Court was delivered, drawn up as follows, by
Shepley J.The plaintiff claims to recover the amount of *147taxes assessed upon him in the town of Readfield, during the years 1842, 3, 4 and 5, and which have been paid by him to the collectors, and to the surveyors of highways. He proved, that the several sums assessed to be paid in money, had been paid to the persons acting as collectors of taxes. There is no proof, that he was compelled to pay any portion of them by duress of his person or property; or that any part was paid under protest and to avoid an arrest of his person or seizure of his property.
When money claimed as rightfully due is paid voluntarily, and with a full knowledge of the facts, it cannot be recovered back, if the party, to whom it has been paid, may conscientiously retain it. Brisbane v. Dacres, 5 Taunt. 144; Preslon v. Boston, 12 Pick. 7. According to the latter case, one peremptorily called upon to pay an illegal tax, by virtue of a warrant issued to a collector of taxes, may give notice, that he pays it by duress and not voluntarily, and may recover it back.
The witnesses in this case, being the collectors, state only, that they collected the taxes by virtue of the warrants issued to them. Taxes are so collected even when paid to the collector without any special call made for them. The mere fact, that they were paid to collectors, who had warrants for their collection, affords no satisfactory proof of a payment by duress. Amesbury W. & C. Manuf. Co. v. Amesbury, 17 Mass. R. 461. To constitute payment by duress, in such a case, there should be proof of an arrest of the body, or of a seizure of the property; or proof authorizing the conclusion, that such an arrest or seizure could be avoided only by payment. There is no such proof in this case. There can be no doubt, that the plaintiff' must be considered as paying with a full knowledge of the facts, for they were within his own actual knowledge, or exhibited by the public records. And as little doubt, that the town may conscientiously retain the proportion of taxes assessed upon one of its inhabitants to defray State, county, and town expenditures.
The proof is still more conclusive, that the payments made to surveyors of highways, of the amounts assessed, to be paid *148-in labor, were voluntary. It does not appear, that the surveyors had been authorized, according to the provisions of the statute, c. 25, § 78, to collect these taxes by warrants of distress. The plaintiff appears to have paid in part by procuring Jab or to be done on the highways; and the residue appears ■to have been paid by agreements with the surveyors to accept -a part of the amount of the taxes paid in money in satisfaction mf the whole. A compulsory payment is disproved, for the ¡plaintiff could not be compelled to perform labor or to cause .it to be performed ; nor could he be compelled to make contracts and procure discharges in full by the payment in part of .the sums assessed.
The plaintiff also insisted, that the collectors as well as the .assessors and other officers of the town, were not legally chosen. The case states, that, “ to prove that no assessors, or selectmen, or constables, or collectors, or other town officers, were duly chosen and legally sworn during the years aforesaid, the plaintiff introduced the records of the several annual town meetings for those years.”
There is no proof, that any part of the money paid by the plaintiff to the collectors has ever been paid by them to the ■treasurer of the town. Without proof of payment to him, or -to some other legal officer, or agent of the town, authorized to .receive it, the plaintiff must fail for want of proof, that the ■town has received the money.
These objections being sufficient to prevent a recovery, it •will not be necessary to consider the other questions presented.
Plaintiff nonsuit.