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plies a condition that due diligence shall be used in proceeding against the principal; and in an action against the surety upon his undertaking, no proof of a request to proceed against his principal, or of damage to the surety from refusal or neglect to comply with the request, need be given by the surety to establish his defense.12 A surety may plead as a defense to a promissory note that usurious interest was agreed upon by the parties at the time of the execution of the note; and although such plea be defective in its statement of facts, yet if testimony is introduced without objection, showing the existence of a contract for illegal interest, the court, after verdict, will permit the answer to be amended to conform to the facts proved. And the defenses of usury, extension of time, and payment, are not inconsistent, and may be set up in an answer of a surety on a promissory note.15 An extension of time to one of the sureties to a contract, does not discharge a co-surety from the entire debt, but only from such part thereof as the former would be bound to contribute to its payment.16 A prima facie case for contribution is made when it is shown that one of two joint debtors had paid more than a moiety of the debt;" and facts which rebut the presumed equity to contribute should be set up by way of defense, and need not be negatived in a complaint for contribution.18

1 Denick v. Hubbard, 27 Hun, 347; Church v. Malloy, 70 N. Y. 63; Willis v. Davis, 3 Minn. 26. See Mullendore v. Wertz, 75 Ind. 431; 39 Am. Rep. 155.

2 Thayer v. King, 31 Hun, 437; Fernan v. Doubleday, 3 Lans. 216; Halstead v. Brown, 17 Ind. 202; Tudor v. Goodloe, 1 Mon. B. 324; Smith v. Hyde, 36 Vt. 306.

3 Newell v. Salmons, 22 Barb. 647.

4 Horton v. Ruhling, 3 Nev. 498, 504.

5 Huey v. Pinney, 5 Minn. 310. And see Costello v. Wilhelm, 13 Kan. 229; Ready v. Šommer, 37 Wis. 265.

6 Baskin v. Godbe, 1 Utah, 28.

7 Newcomb v. Hale, 90 N. Y. 326; Thayer v. King, 31 Hun, 437.

8 Thayer v. King, 31 Hun, 437; Howe Machine Co. v. Harrington, 82 N. Y. 121; Denick v. Hubbard, 27 Hun, 347.

9 Coats v. Swindle, 55 Mo. 31. But see contra, Headington v. Neff, 7 Ohio, 223.

10 Coats v. Swindle, 55 Mo. 31, 33.

11 Toles v. Adee, 91 N. Y. 562; 16 N. Y. Week. Dig. 537. And see Northern Ins. Co. v. Wright, 76 N. Y. 445.

12 Toles v. Adee, 91 N. Y. 562; 16 N. Y. Week. Dig. 557.

13 Keim v. Avery, 7 Neb. 54.

14 Keim v. Avery, 7 Neb. 54.

15 Shed v. Augustine, 14 Kan. 282.

16 Ide . Churchill, 14 Ohio St. 372, 386; Klingensmith v. Klingensmith, 31 Pa. St. 460.

17 Gaster v. Waggoner, 26 Ohio St. 450. See Wells v. Miller, 66 N. Y. 253; Hitchboon v. Fletcher, 66 Me. 210; Newcomb v. Gibson, 127 Mass. 338; Van Winkle v. Johnson, 11 Oreg. 469.

18 Gaster v. Waggoner, 26 Ohio St. 450.

? 206. Taxes-Taxation. - An action to enforce the collection of a tax will not lie against a tax-payer without a previous demand, or the publication of notice equivalent thereto, and a demand of the tax and default of payment must be alleged.1 But when taxes are paid under protest, no demand is necessary before suit to recover back the money so paid, the protest itself being sufficient notice that the tax-payer regarded the tax as illegal, and that he would enforce his rights, if need be, by an appropriate proceeding.2 To justify the recovery back of the money paid, where payment was made in satisfaction of an assessment which is void, the payment must be shown to have been involuntary, that is, compulsory from coercion either in fact or by law.3 But a complaint which sets out the facts that the assessment was void and had been so declared, and that the payment of it was made under a threat that the plaintiff's property would be sold if it were not paid, would seem to state a complete right of action. A complaint

in an action to enjoin the collection of taxes, which does not show a payment or unconditional tender of so much of the tax as is conceded, or can be shown to be

BOONE PLEAD. - 34.

properly due, does not present any equity sufficient to justify either preliminary or final relief.5 A cause of action for the recovery of taxes alleged to have been illegally paid under protest, and one for an injunction to restrain the collection of taxes assessed for a different year, do not fall within a class that may properly be united in the same complaint, the one being a legal and the other an equitable cause of action, and not arising out of the same transaction. A complaint in an action to recover delinquent taxes, which enumerates the property in words identical with those in the assessment book, is sufficient; but merely stating the property assessed as personal property, is insufficient under a statute which requires that the officer designated to bring the action should state in the complaint "the kind and quantity of the property assessed." Where, in order to show a liability on the part of a county to a purchaser of land at a tax sale, a statute requires it to appear that the sale has failed through some "mistake, or wrongful act of the county treasurer or other officer". of the revenue, the complaint, to state a cause of action, must set out the particular act done or omitted, and the officer doing or omitting it.9 A complaint to enforce a ditch assessment made under the Indiana statute, is not good as a complaint in assumpsit, which neither avers that the defendant requested the work done, nor that he promised to pay for it.10 In an action under the Wisconsin statute to foreclose a tax certificate, the complaint need not set out the proceedings antecedent to the certificate, nor allege that no proceedings at law for the same purpose have been taken." Under the New York statute, giving an action to tax-payers against certain officers to prevent waste or injury, a complaint which alleges that the plaintiff's were, as residents and tax-payers of a town, liable to assessment and taxation

therein, and were residents and tax-payers and owners of property liable to assessment and taxation therein at the time of the occurrences mentioned in the complaint, is sufficient.12 A complaint in an action to remove an assessment as a cloud on title is sufficient if one ground for the relief is good, although another be bad.13 A complaint in such action, charging a failure of the commissioners to act on the award made, a fraudulent and unlawful suppression of their report, that they fraudulently procured the appointment of other commissioners of awards, and that the record falsely and fraudulently shows otherwise, states a good cause of action. A complaint in a tax suit which fails to show that the property was assessed to any particular party whose duty it was to pay the taxes, or that it was made to unknown owners, does not state facts sufficient to constitute a cause of action.15 So of a complaint in an action by a judgment creditor against a tax collector for taking property held by the sheriff under his execution, which fails to allege the insolvency of the judgment debtor.16 But a complaint in an action against a city for the recovery back of taxes illegally assessed and collected, is not open to demurrer on the ground that the tax was for city, county, and State purposes, if there was an allegation that the defendant held the whole amount illegally collected. Where a statute provides that taxes which have been remitted by the board of supervisors shall be exempt from its provisions, it need not be averred in the complaint that the taxes sued for have not been remitted, but that fact, if it exist, should be pleaded in bar of the action.18

1 St. Anthony etc. Co. v. Greely, 11 Minn. 325; Thompson v. Gardner, 10 Johns. 404. It is within the power of the legislature to define by law the grounds upon which a party sued for his taxes may set up a defense: People v. Wilkerson, 1 Idaho, 619.

2 Board of Commissioners v. Cutter, 3 Colo. 349; Look v. Inhabitants of Industry, 51 Me. 575.

3 Peyser v. Mayor etc. 70 N. Y. 502 Marsh v. City of Brooklyn, 59 N. Y. 280; Stuart v. Palmer, 74 N. Y. 183; Georgetown College v. District of Columbia, 4 McAr. 43; Babcock v. Fond du Lac, 58 Wis. 230. 4 Beuccher v. Village of Port Chester, 31 Hun, 550, 557.

5 Huntington v. Palmer, 7 Sawy. 355. And see National Bank v. Kimball, 102 U. S. 733; Wilson v. Longendyke, Sup. Ct. Kan. 4 Pacif. L. Rep. 361; 32 Kan. 267; Frazer v. Seibern, 16 Ohio St. 614; City of Ottawa v. Barney, 10 Kan. 270.

6 Turner v. Althaus, 6 Neb. 54, 66.

7 San Francisco v. Flood, 64 Cal. 504. And see People v. McCreery, .34 Cal. 434; People v. Sneath, 28 Cal. 612; Falkner v. Hunt, 16 Cal. 137; State v. Mining Co. 1 Nev. 523. The rule as to the degree of certainty required in describing personalty in assessments for taxation is, that the description shall be such that tax-payers may know for what they are to be taxed: People v. Home Ins. Co. 29 Cal. 549; Monroe v. Town of New Canaan, 43 Conn. 312.

8 People v. Holladay, 25 Cal. 300.

9 Kaeiser v. Nuckolls County, 14 Neb. 277.

10 Boatman v. Macy, 82 Ind. 490; Bogart v. Castor, 87 Ind. 244. Sce Albertson v. State, 95 Ind. 370.

11 Durbin v. Platto, 47 Wis. 484.

12 Ayers v. Lawrence, 59 N. Y. 192. See N. Y. Code Civ. Proc. 1925; Hull v. Ely, 2 Abb. N. C. 440; Lutes v. Briggs, 64 N. Y. 404; Hills v. Peekskill Sav. Bank, 26 Hun, 161; People v. New York etc. Co. 84 N. Y. 585; Bird v. Mayor etc. 33 Hun, 396.

13 Boyle v. City of Brooklyn, 71 N. Y. 1.

14 Dederer v. Voorhies, 81 N. Y. 153.

15 People v. DeCarrillo, 35 Cal. 37. An averment that a tax was "duly levied "is equivalent to pleading the substance of the ordinance under which it was levied, and is sufficient to authorize the reception of the ordinance in evidence: City of Kansas v. Johnson, 78 Mô. 661. 16 Scott v. Morgan, 10 N. Y. Week. Dig. 531.

17 Union Nat. Bank v. Mayor etc. 51 N. Y. 638. 18 People v. Todd, 23 Cal. 181.

207. Trespass-Complaint. In an action for trespass to land, the complaint must aver that the plaintiff was in possession at the time of the trespass, or was put in possession afterwards.1 But possession in the plaintiff would sufficiently appear from an allegation of title in him.2 And a complaint which states that the defendant committed certain injuries to and upon the real estate of the plaintiff, is not insufficient because it does not state that the plaintiff was in the possession of such real estate ;3 but in such case, he can recover for injuries to the land only; if, however, he states that