
    August Brenchweh v. G. W. Drake, Treasurer of Brown County.
    1. An action to enforce the lien of an assessment, under the act of April 11, 1876 (73 Ohio L. 218), commenced within six years of the passage of the act, if such assessment shall so long continue to be a lien upon the property, is not barred by the statute of limitations.
    2. Whether such action is within the purview of the statute of limitations. Qumre.
    
    Motion for leave to file a petition in error to the District Court of Brown county.
    The original action was brought by defendant in error against plaintiff in error, to enforce an assessment lien, under the road improvement act of 1867 and its supple-merits, against the lands of plaintiff’in error, under the act of April 11, 1876 (73 Ohio L. 218), entitled “an act to amend an amendment to an act supplementary to the several acts relating to the collection of delinquent taxes,” etc.
    The defendant below pleaded the statute of limitations, and alleged that “the cause of action had not accrued within six years,” etc.
    To this defense the plaintiff’ demurred, and the court of common pleas sustained the demurrer, and rendered judgment against the defendant.
    On appeal to the district court, the demurrer was again sustained and final judgment was rendered against the plaintiff in error.
    The only error now assigned, is upon the rulings of the court below in sustaining the demurrer to the plea of the statute.
    . G. Bamlack and D. W. C. Loudon and W. D. Young, for the motion,
    contended that the action was barred by the lapse of six years after the right of action accrued, under the second subdivision of the code. Mount v. Lakeman, 21 Ohio St. 643. Because, 1. The liability of the defendants to be assessed was created by statute. 2. This liability is neither a penalty nor a forfeiture.
    
      B. B. Honey and John G. Marshall, contra,
    called the attention of the court to the fact that there was no law authorizing this suit to be brought to recover assessments until 1876 (73 Ohio L. 218), and as to the running of the statute of limitations, cited Trustees, etc., v. Campbell, 16 Ohio St. 12,15; 29 Ohio St. 569; Stoughton et al. v. Baker et al., 4 Mass. 228; Angelí on Limitations, 29, sec. 37 (5th ed.); The People v. The Supervisors of the County of Columbia, 10 Wend. 363; The People v. Gilbert, 18 Johns. 226; Inhabitants of Stoughton v. Baker, 4 Mass. 528; Weatherhead.v. Bledsoe, 2 Overt. (Tenn.) 352; PLarlock v. Jaekson, 1 Const. (S. 0.) 125; Nimmo’s Bx’r v. Commonwealth, 4 Hen. & Munf. (Ya.) 53; 
      United States v. Williams, 5 McLean, 188; State v. Fleming, 39 Miss. (4 Bennett), 667; Iverson v. Buboso, 27 Ala. 418; Joslyn v. Stone, 28 Mass. (Cush.) 758; Troutman v. May, 33 Penn. St. 445; Carey v. Whitney, 48 Me. 516; Bagley v. Wallace, 16 Serg. & R. (Penn.) 245; Commonwealth v. Milieu berger, 7 Watts (Penn!) 450; Madison Co. v. Bartlett, Br. (111.) App. 30; Miller v. Lessee of Lindsey, 1 McLean C. C. S3; Parmilee v. McNutt, 1 Sm. & M. .179.
   By the Court.

The statute under which this assessment was made provides that the assessment shall be placed upon the duplicate for taxation against the lands assessed, and shall be collected in the same manner as other taxes.

The act under which the original suit was brought provides : “ That when any taxes of assessments, heretofore or hereafter levied or assessed, shall stand charged against any lands or lots or parcels thereof, upon the tax duplicate or special duplicate of the county of this state, for state, county, city, or any other purposes, and the same shall not be paid within the time prescribed by law for the payment of such taxes and assessments, the treasurer of such county, in addition to any other remedy provided by law for the collection of. such taxes and assessments, is. hereby specially authorized and empowered to enforce the lien of such taxes and assessments upon said property, by commencing, in any of the courts of this state having jurisdiction of the subject-matter, a civil action in the name of such treasurer,” etc. This statute was the first which gave the remedy sought to be enforced by the original action, and that action was commenced in the December next after its passage. The assessment was standing on the duplicate for the year 1876, then in the hands of the treasurer for collection, and there is no doubt that the usual remedy by sale for delinquency was subsisting at that time. Thei’e is no limitation, under the statute, upon the time within which payment of delinquent taxes, standing upon the duplicate in the treasurer’s hands for collection, must be enforced by the ordinary mode of delinquent sales. The cause of action was therefore subsisting at the time the original action was commenced, and it is quite clear that the statute of limitations could not begin to run against such action until the] right of action ‘ was given by the statute of 1876-.

"Whether the action given by this statute is within the purview of the statute of limitations is a question which we are not now called upon to decide. ■

Motion overruled.  