The question of the right of the plaintiffs to recover money which has been paid as a tax assessed upon their real estate, eo nomine, does not arise in this case, because the tax upon real estate of which they complain was not paid by them till after the commencement of the suit.
But it has been held, and is well settled, that real and personal estate are so far separate and distinct subjects of taxation, that, if a person is liable to taxation only upon one, he may recover in an action against the town money which he has been *333compelled to pay by reason of a tax illegally assessed upon the other. Boston & Sandwich Glass Co. v. Boston, 4 Met. 181. Howe v. Boston, 7 Cush. 273. Lincoln v. Worcester, 8 Cush. 55. If the plaintiffs were not taxable, therefore, for any personal property in Charlestown, they may maintain this suit. If they were rightfully taxed for any, however little, they cannot have a remedy in this form, for including in the assessment property for which they were not taxable ; but the remedy must be by an application for an abatement. Little v. Greenleaf, 7 Mass. 236.
And we think it very clear that the plaintiffs were not taxable for any personal property in the city of Charlestown. They are a corporation established by law for the purpose of constructing and working a horse railroad. The corporation has no residence. Its stockholders are liable to taxation upon their shares in the towns where they dwell. The value of the personal property owned by the corporation is included as a subject of taxation in the value of the shaves ; as in the case of banks, insuvance companies, manufacturing corporations, and other railroads.
The defendants rely upon the special provision in Gen. Sts. c. 11, § 12, cl. 3, that horses employed in vehicles for the transportation of passengers for hire shall be assessed to the owners in the places where they are kept. But a similar provision is found in the first clause of the same section, relating to stock in trade, including that employed in manufacturing or the mechanic arts in cities or towns within the state other than where the owners reside, which is to be assessed to the owners in the towns in which they hire or occupy manufactories, stores, shops, &c. This last provision was reenacted from St. 1839, c. 139, § 1; and in Boston & Sandwich Glass Co. v. Boston, it was held to have no application to the mode of taxing property held by corporate bodies. That decision is in principle precisely in point in the present case, and is decisive of it.
The plaintiffs were therefore entitled to recover the whole sum paid by them as a tax upon personal property, and their exception to the ruling that the action could not be maintained is sustained.