
    Michael Barrett vs. City of Cambridge.
    Ho action lies to recover back a tax paid before process had been issued for its colleetien, although the tax was illegal.
    Contract brought to recover back the amount paid by the plaintiff for a tax illegally assessed upon him by the defendants
    It was agreed in the superior court that, on the 6th of May 1857, the plaintiff and others petitioned the city government of Cambridge to grade Charles Street and a part of Fourth Street, and assess the expenses upon the abutters according to law. The streets were accordingly graded and an amount assessed upon the plaintiff, payment of which was demanded of him, and, in August 1858, he paid the same to avoid proceedings against his property, although no process had issued at the time. The plaintiff duly demanded repayment of the amount.
    Upon these facts, judgment was rendered for the defendants, and the plaintiff appealed to this court.
    
      C. S. Lincoln, for the plaintiff.
    
      T. H. Sweetser, for the defendants.
   Metcalf, J.

The city government of Cambridge had no authority to assess the plaintiff, or any other person, for the expense of grading Charles Street and part of Fourth Street; the St. of 1853, c. 315, having been adjudged to be unconstitutional and void. Morse v. Stocker, 1 Allen, 150. And as no procesa was issued for the collection of the assessment, the plaintiff must be held to have paid it voluntarily when it was demanded of him, and therefore cannot recover it back. He was undei no compulsion, which the law recognizes as a ground for such recovery. See Boston & Sandwich Glass Co. v. Boston, 4 Met 181; Forbes v. Appleton, 5 Cush. 117, 118; Lee v. Templeton 13 Gray, 476.

Judgment for the defendants,  