
    Hemingway versus Inhabitants of Machias.
    If a person, Hable to taxation in a town for real and personal estate, Has also been assessed for, and has paid a tax upon, additional property, for which he was not Hable to be assessed, his redress cannot be had by action against the town, although the payment was made under protest.
    His remedy is exclusively by application to the County Commissioners upon a refusal by the assessors to make the proper abatement.
    On Report from Nisi Prius, Shepley, C. J. presiding.
    Assumpsit.
    The plaintiff resided in Machias, and was in possession of real estate and of a large quantity of lumber, some oxen and a horse, and several other descriptions of personal property, and he was taxed there for the same, though the whole, both personal and real, was owned by a person resident in Massachusetts.
    The plaintiff paid the tax under protest, and now brings this action to recover back the money.
   Wells, J., orally.

— The questions discussed by the counsel are, whether the plaintiff' was liable to the taxation, and, if not, whether a recovery can be had in this form of proceeding.

By law, real estate and also some descriptions of personal property, (among which are oxen and horses,) may be assessed to the party in possession. As to the real estate and as to the oxen and the horse, it is conceded that the assessment upon the plaintiff was lawful. Whether the assessment for the other sorts of personal property was lawful, it is not necessary, in this action, to decide.

G. Walker, for the plaintiff.

Thacker, for the defendants.

In cases of mere over-taxation, the remedy is not by an action like this ; but by application for an abatement to the assessors, and, upon their refusal, to the County Commissioners. To that remedy the plaintiff must be referred, for, as he was liable to assessment for the real estate and a part of the personal, the taxation of the other property, even if not authorized, was simply a case of over-taxation.

Plaintiff nonsuit.  