
    Whitbeck, Treas., v. Minch.
    
      Payment of an illegal assessment, under protest simply, not an involuntary one.
    
    (Decided March 3, 1891.)
    ERROR to the Circuit Court of Cuyahoga county.
    
      A. T. Brinsmade and W. B. Sherwood, for plaintiff in error
    
      Mix cf White, for defendant in error.
   By the Court.

A party who pays an illegal assessment upon his property, cannot recover it back in a suit against the treasurer, unless the payment was an involuntary one. To constitute the payment an involuntary one, it must appear that the treasurer was about to levy a distress upon the property of the party charged with the assessment: a simple protest against the validity of the assessment, with notice to the treasurer that the party intends to bring suit to recover it back, is not sufficient. In such case 'the general rule applies that, if litigation is. intended, it must precede payment, where, as in such cases, the party has a plain remedy provided by statute, section 5848, Revised Statutes, and may resort to the same, and thereby avoid a distress of his property.

Judgments of both courts reversed, and cause remanded to the common fleas for further froceedings.  