majority">Scott, Judge,

delivered tlie opinion of tlie court.

We do not see on what ground the plaintiff can maintain this action. Suppose he recovers; on what principle will he be discharged from his contract with the defendant to pay the tax, the subject of this suit ? If the defendant had refunded the money in controversy, would he not have had an immediate right to recover it on the contract by which the plaintiff bound himself to pay it ? And if the plaintiff recovers in this suit, will not that right revive ? If the defendant has injured or defrauded the plaintiff, let him sue and recover his damages. The only injury the plaintiff could have sustained, if any, was the loss of the stock to which the payment of the railroad tax would have entitled him. All that he could recover would be the value of that stock. But was the plaintiff entitled to any stock for the railroad tax paid on the Morrison property ? That property was assessed as the defendant’s ; he was liable for the railroad tax by reason of his contract and title thereto, and he was the person entitled to the railroad tax upon the payment of the tax. Now if he has procured another to pay the tax, will not such payment, under the thirty-first section of the act entitled “ An act to authorize the formation of railroad associations and to regulate the same,” approved February 24, 1853, (Sess. Acts, 1853, p. 121,) enure to his benefit ? If the plaintiff’s action was for fraud or misrepresentation or mistake only, without regard to the contract between the parties relative to the payment of the taxes, then, if he recovered the sum paid, he would still be bound under his contract to repay the same. The plaintiff’s situation would not be bettered by succeeding in this suit. We do not see what difference it makes in the case, that the law furnished the defendant with an easy way of paying the tax — if it may be called easy, when he had advan ced every cent of the money for the stock which he received, That was his good fortune. It placed the plaintiff in no worse situation. It created no loss to him, and he has no cause to complain, as under the section of tlie act referred to *366be could not have gone into, the market and purchased stock with which he might pay his tax. Only such stock was available for that purpose as was iix good faith subscribed by the tax payer using it. It does not appear that the plaintiff was a stockholder by a bona fide subscription; he then could only have paid this tax in money. The defendant has paid it for him. He has repaid the defendant, and now would recover it from him in order that he might by another suit be made to pay it again.

The other judges concurring, the judgment is reversed.

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