In this case the appellee, the plaintiff below, had judgment against the appellant upon the following facts, agreed upon, namely:
“In May 1853, a special meeting of the voters of Wabash township, of said county, was duly held, and a tax of fifty cents on the hundred dollars of taxable property was voted, for the purpose of building school houses, and continuing *337schools after the public funds should have been exhausted, and to defray the general expenses of such schools, as provided l'orin § 130 of an ‘Act to provide for a general and uniform system of common schools, &c., approved June 14, 1852.’ The plaintiff was a resident of said township at the time, the owner of property therein, and was assessed and taxed the sum of twenty-one dollars and seventy cents, under and by virtue of said vote. In December, 1853, said plaintiff called at the office of said defendant, then and still the treasurer of said county, and paid to him said tax with his other taxes, they at the time supposing the same to be legal. The said sum of twenty-one dollars, seventy cents, is still in the hands of said Martin, as such treasurer, and has been demanded by said plaintiff, and payment thereof refused by the defendant.”II. IE Chase and J. A. Wilstach, for the appellant. John Stanfield, for the appellee.
The error assigned is, that the judgment is erroneous, because the payment was voluntary.
That the tax was improperly assessed, has been decided in the case of Greencastle Township v. Black, 5 Ind. 557, and being improperly assessed, the treasurer could have been enjoined from collecting it. Id. But as it was voluntarily paid, though under a mistake of law, it can not be recovered back. Snelson v. The Board, &c., 16 Ind. 29; Bond v. Coats, id. 203; Jenks v. Lima Township, ante, p. 326.
The judgment is reversed, with costs. Cause remanded, &c.