This is an action of trespass brought by the plaintiff in error. The declaration sets out the cause of action as follows:
'Robert P. Barry, plaintiff, complains of E. G. Edmunds, defendant, of a plea of trespass on the case, for this to-wit: That the plaintiff is a citizen and resident of Fauquier county, Virginia. That he owns property in said county, and that he was duly and lawfully assessed with the sum of fifty-six dollars and thirty-four cents as taxes upon said property, to be paid to the state of Virginia for the year 1884. That said taxes, by the laws of said state, were not leviable for prior to the first day of December, 1884, but if not paid prior to said last-named date were leviable for after said date. That, by a further provision of the laws of said state, if the taxes assessed for the year 1884 are not paid on or before the first day of December, 1884, the person owing the same becomes liable to pay, in addition thereto, a further sum of five per centum upon the amount of the tax so due. That the plaintiff did not pay his said tax prior to the first day of December, 1884, and thereby became liable to pay an additional sum of two dollars and eighty-one cents, making the plaintiff thus liable after the first day of December, 1884, for the sum of ($59.15) fifty-nine dollars and fifteen cents.
'That the defendant is the treasurer of Fauquier county, in the state of Virginia, and as such it is made his duty, by the laws of Virginia, to collect all taxes due to the said state by residents of said county. That in the month of June, 1885, the plaintiff tendered to the defendant, in payment of his said taxes, fifty-nine 15-100 dollars, in coupons and lawful money of the United States, the two together constituting the full amount due for said taxes. That each one of the said coupons was cut from a bond issued by the state of Virginia, under the authority of the provisions of an act of her general assembly approved March 28, 1879, entitled 'An act to provide a plan of settlement of the public debt.' That each one bore upon its face the contract of the state of Virginia that it should be received in payment of all taxes, debts, and demands due to said state, and that each one was due and past maturity. That the defendant refused the said coupons and money in payment of the plaintiff's taxes. That he refused to receive the same in payment of his taxes because an act of the general assembly of the state of Virginia, approved January 26, 1882, entitled 'An act to provide for the more efficient collection of the revenue, to support government, maintain the public schools, and to pay interest upon the public debt,' forbade him to receive them, and because another act of the general assembly of said state, approved January 14, 1882, entitled 'An act to prevent frauds upon the common wealth and the holders of her securities in the collection and disbursement of revenue,' likewise forbade him to receive them. That on the-day of June, 1885, the defendant, unlawfully, maliciously, and against the will of the plaintiff, entered upon the premises of the plaintiff, situated and being in the county of Fauquier, Virginia, with force and arms, and against the will of the plaintiff, and, acting as said treasurer aforesaid, did levy on and forcibly seize and carry away valuable personal property belonging to the said plaintiff, to-wit, one valuable horse, of the value of one hundred and twenty-five dollars, for the purpose of selling the same, and thus compelling the plaintiff to pay his taxes in another medium than that already offered by the plaintiff. That on the day when the defendant so levied on the plaintiff's property, and before he did so, the plaintiff again tendered to the defendant the said coupons and money in payment of his said taxes, but the defendant refused to receive the same in payment thereof; and the plaintiff was always ready and willirg, up to the moment of said levy, to deliver to the defendant the said coupons and money in payment of his said taxes, but the defendant always refused so to receive the same. That the defendant levied on the plaintiff's said property and carried the same away, because the eighteenth section of the act of the general assembly of Virginia, approved April 1, 1879, which is chapter 60 of the acts of the special session of 1879, commanded him so to levy upon the plaintiff's property not withstanding said tender.