The opinion of the court was delivered by

This action is against the defendant, as county treasurer, to 'recover back money alleged to have been paid to the defendant by the plaintiff upon an alleged illegal demand made by the defendant as county treasurer. It appears that the money was paid under protest in order to obtain a remedy for its recovery back under the provisions of the act “ to facilitate the collection of taxes,” approved December 24th, 1878, (16 Btat. 785,) and the action was framed with special reference to the provisions of that act. It appeared by the testimony of the defendant that he had no authority, as county treasurer, to make the demand. That, notwithstanding such want of authority, he gave public notice, as treasurer, as follows:

“I am instructed by the Greenwood and Augusta railroad authorities to extend the time for the receiving of the railroad tax without penalty until Wednesday, January 15th, 1879.

“ Persons are notified that after that time I will proceed to collect, by levy and sale of lands, as provided for in the collection of state and county taxes.

(Signed) “J. W.' Peeein, Treasurer.

“ October 25th, 1878.”

It appears that, under this notice, the payment was made by plaintiff under protest.

Assuming for the present that the pleadings admitted of it, the jury would have been entitled, on the evidence in the case, to say whether '.the defendant had represented that the plaintiff was liable to pay the amount in question as a tax levied against him, and whether the plaintiff believed aud acted upon such rep*6resentation in making payment of the money now sought to-be recovered back, and whether such statement was false, and, might have found as matter of fact that such was the case.

The Circuit judge granted a non-suit upon the ground that the case could not be brought within the provisions of the act “ to facilitate the collection of taxes.” He places his decision upon the ground that the demand against the plaintiff was not a tax in the meaning of that act. That act provides a remedy where any “state, county or other taxes are now or shall hereafter be charged upon the books of any county treasurer against any person,” &c. Had there been such a charge against the plaintiff, as the notice given by the defendant imputed, it would have sustained the remedy provided by this act. If there had been such-a tax, this plaintiff could have paid it under protest, and have had his action to recover it back. In that case, on receiving such payment, it would have become the duty of the defendant to transmit the amount to the comptroller-general, who would-be compelled to refund it in ease judgment went in favor of the plaintiff. The action was evidently framed under the idea that a right to demand the tax, as such, existed, in form at least, and-steps taken to secure the remedy by the act, including the-shaping of the complaint to suit such a case.

It appeared on the trial, through the defendant’s testimony, that no such tax, as such, existed at any time, and that he was in fact acting as the agent of the railroad company, enforcing, the payment of money claimed to be due to such company. It was a clear case, under the code, for not restraining the verdict to the issues framed by the pleadings, but sending the case to the jury upon the evidence with or without previous amendment of' the pleadings. The court yrould have been justified in holding that the misconduct of the defendant, as disclosed by the evidence, had induced the plaintiff to select an inappropriate form of action.

When upon the trial of a case it appears by evidence admitted' without objection, or properly admissible under the pleadings, that the plaintiff is entitled to a remedy, upon the case exhibited, he cannot be turned out of court merely because the cause of' *7action set forth in his complaint does not conform to such state of the proofs.

The non-suit'must be set aside and a new trial had.