The plaintiff claims to recover back a sum of money paid under protest, in part satisfaction of a tax assessed by the assessors of the city upon his personal property for the year 1848.
By the agreed statement it appears, that he was on the first day of May of that year an inhabitant of the city, transacting business there in a shop occupied by him. That a large portion of the goods in that shop, had been consigned to him for sale at fixed prices, by persons residing in Boston; that a smaller portion of them were owned by him ,* that the goods were mixed together, composing his stock in trade j and that he was assessed as the owner of the whole.
It does not appear, that the assessors had or could have any knowledge, that he was not the owner of the whole stock, until the day limited for presenting to the assessors lists of taxable property had expired, when they were notified, that he did not own more than to the value of about five hundred dollars. They were not bound to regard that statement as correct. He appeared to be in possession and to conduct as the owner, and they might regard the evidence, that he did not own the whole as unsatisfactory, and might believe, that he owned more of the goods, than he admitted to be his own. The city was entitled to have the questions, whether the whole • or a greater portion, than was admitted to be his, was liable to be assessed, determined first by'the assessors and finally by some competent tribunal.- The statute has provided such a tribunal by an appeal from the judgment of the assessors to the court of the County Commissioners.
There may be many eases, in which assessors may judge, that a person is liable to be assessed for certain personal property, when upon a careful examination of the facts by a tribunal more competent or having greater power to ascertain ■áhe truth, it. may be determined, that he was not liable. If *411in such cases, the persons assessed could neglect to place themselves in a position to obtain redress by an appeal to the County Commissioners, and could voluntarily pay such portion of their taxes, as they might think just, and pay the remainder under protest, and then maintain a suit at law to recover back the sum last paid, towns and cities might be subject to a great number of suits, and continue to be subject to them for a long time after those taxes had been paid.
If the plaintiff could maintain this action, he could deprive the assessors and the city of all power to have any final determination made, whether he stated correctly the amount of his personal property liable to assessment, until it had been decided in a suit commenced by himself at his own pleasure. If no agreed statement had been made, it is quite apparent, that the defendants would have been entitled to prove in this case, that the plaintiff was at the time the owner of personal property, liable to assessment, to a much greater amount than he admitted. And thus the question would have been directly presented on the trial of an action at law, whether he had been overrated; a trial not permitted by the statute, which provided a different remedy.
If, as contended, an appeal to the County Commissioners is not, and an action at law is the appropriate remedy, when one person, having in his possession as the apparent owner the property of another, is overrated, the result might bo, that every person assessed, who at the time had a trifling amount of property owned by anothpr in his possession, might maintain a suit to recover back the amount alleged to have been assessed on such property. Under such a system towns might be able to do little more, than to collect sufficient to make such repayments with the costs and expenses attending the litigation.
The plaintiff also claims to recover by virtue of the provisions contained in the statute, chap. 14, § 88, that no error, mistake or omission by the assessors shall render the assessment void ; and that the party injured may bring his action *412against the town for any damages, he may have sustained by such error, mistake or omission.
‘ If such a construction were to be made as would authorize an action at law to be maintained against a town, whenever its assessors made an excessive assessment by including in the valuation personal property not liable to be assessed, the provisions of that statute, which require lists of assessment to be presented and which authorize and regulate the right of appeal, would be of little practical importance. A person liable to be assessed omits to present a list of his personal property, and the assessors place upon the valuation a certain amount of money at interest, for which he is assessed. If he can pay under protest the amount of the tax assessed on such money at interest, and recover it back of the town by proof, that he had no money at interest, on the ground of an error committed by the assessors, it would be very difficult to make a person, who neglected to present a list, pay more taxes for intangible personal property than he pleased.
It could not have been the intention to include in this section any error in judgment made by the assessors respecting the amount or value of personal property for which a person was liable to be assessed. The correction of such errors is to be obtained by an appeal to the County Commissioners.
Plaintiff nonsuit.