
    William Ellis vs. The Eighth School District in Seekonk.
    An inhabitant of a school district may recover back from the district money paid by him to the town collector and treasurer as part of a tax illegally assessed; without proving that the clerk of the district certified truly to the assessors the vote of the district to raise this tax.
    Action of contract for money had and received, to recover back the amount of a school district tax.
    At the trial in the court of common pleas in Bristol, the plaintiff introduced evidence that he was arrested by the collector of the town of Seekonk for nonpayment of a school district tax voted by the defendants at a meeting not duly notified, and assessed by the assessors of the town; and was committed to jail, after which he paid the amount to the collector, who was also town treasurer.
    The defendants contended that the plaintiff could not maintain his action, because the evidence did not show' that the money paid by the plaintiff had been so received by the defendants as to make them liable therefor. But Briggs, J. ruled that upon this evidence the action could be maintained, and a verdict was taken for the plaintiff for the amount of the tax and interest. The defendants alleged exceptions.
    
      B. Sanford, for the defendants.
    1. The evidence did not show that the clerk of the district certified truly to the assessors the vote of the district for raising by tax the sum of money voted at the district meeting. Rev. Sts. c. 23, § 29.
    2. The money was received by the collector as collector and not as treasurer, and the presumption is that he holds it as collector until he actually applies it to the use of the town, or as treasurer pays it over to the committee authorized to receive it, or renders his annual account. Rev. Sts. c. 15, § 64. But whether received by him as treasurer or collector of the town, he is not, in either capacity, the defendants’ agent; but must account to the town for the money which he receives ; and must pay it, not to the district, but to a committee, to be by them applied to specified purposes. Rev. Sts. c. 15, § 64; c. 23, § 39. There is no evidence that the defendants bad such a committee to receive it or who did receive it, or that the money has ever been applied to the defendants’ benefit. Joyner v. School District in Egremont, 3 Cush. 571, 573.
    
      G. I. Reed, for the plaintiff.
   Dewey, J.

It seems to be conceded that this tax was illegally assessed upon the plaintiff, the meeting of the school district not having been notified properly. The only question raised therefore is of the liability of the school district to a member of the district for the money that he has paid upon an illegal tax, under the circumstances stated in the bill of exceptions. The money was paid to the town collector and treasurer. But such person acts in this matter as the agent of the school district. The receipt of the money as collector, where the two offices of collector and treasurer are united in the same person,' is to be taken to be a receipt of the money by the town treasurer. This money is properly the money of the school district, and the treasurer of the town holds it as the agent of the school district. Rev. Sts. c. 23, § 39. Perry v. Dover, 12 Pick. 206. Joyner v. School District in Egremont, 3 Cush. 573. The action was therefore properly brought against the school district, they having the money subject to their order and control in the hands of an agent.

An1 objection was taken at the argument of this case, that it did not appear upon the evidence that the clerk of the district certified truly to the assessors the vote of the district for raising the tax. Waiving any question as to this point being now open to the defendants, we think it does not affect the plaintiff’s right to recover. Although it might subject the assessors to an individual liability, if no such certificate was filed with them, yet it does not render the tax less illegal, nor justify the school district in retaining the money collected on the assessment.

Judgment for the plaintiff.  