The opinion of the court was delivered by
Isham, J.The judgment of the county court in this case must be reversed. The arrest of which the plaintiff complains, is admitted by defendant, Gerry, in this plea, but he justifies the same as collector of taxes. From the facts, which are admitted by the demurrer, it appears that the plaintiff was assessed, in the sum of $11,96, as ^specified in two several rate-bills and warrants, which were issued and placed in the defendant’s hands, as collector; and that for the non-payment of these two taxes the arrest was made.
The legality of the assessments, rate-bills, and warrants, are not disputed, but it is insisted that the arrest was illegal, as the plaintiffhanded to defendant, Gerry, the sum of $13,25, being the amount of the taxes and costs, and requested to be discharged, which said defendant refused to do, until the further sum of $3,44 was paid as interest on the taxes. The defendant states as a ground for the recovery of the interest, that he made a demand for the payment of the taxes, on the first day of June, 1846, and that the plaintiff neglected and refused to pay them, until the time of the arrest in August, 1851. The demurrer admits that the arrest was made for the purpose of enforcing the' payment of interest merely. The question arises, whether for that purpose, the arrest and commitment was legal.
We are satisfied that the collector had no right to demand and enforce the payment of that interest. The taxes were assessed in 1846, and have remained in the hands of the collector until their payment in 1851. The plaintiff was absent from the state during all the period from the time of the assessment, to the time *486of the arrest, and had no property in this state, known to the collector, which could he distrained. There is no provision of the statute authorizing him to collect interest on taxes, of the persons' against whom they are assessed, and we perceive no provision which subjects the collector to the payment of interest under such circumstances. The assessment of taxes does not create a debt that can be enforced by suit, or upon which a promise to pay interest can be implied. It is a proceeding purely in invitum. The existence of a contract either express or implied, is the ground on which interest is generally allowed. Until the statute for that purpose was passed, an officer having an execution in his hands for collection, could not levy the same on the person or property of the debtor, to enforce the payment of interest on the judgment. There is obviously more propriety in allowing interest to be collected in such cases, by the officer, where the debt arises from the contract of the parties, than in cases of this character.
The justification is deemed insufficient, and the judgment of the County Court must be reversed arid the case remanded.