the opinion of the Court was delivered by
GrJREEN, J.:
It seems incredible that such a case as this could pass the ordeal of a court of justice. The action was trespass brought against a tax-collector. The paper-book does not inform us what kind of trespass it was, and the evidence leaves the subject equally uncertain. The only witness examined for the plaintiff was the plaintiff himself. He did not testify to a solitary act of trespass of any kind whatever, either to his person, his lands, or his goods. The only subject of proof to be found in his testimony is that a certain sum of wages due him from the Delaware, Lackawanna and Western Railroad Company, amounting to $30 10, was deducted from his pay, and that a certain receipt, purporting to be from the defendant to the plaintiff for bounty tax for the amount stated, was left with the company, and was delivered by the paymaster of the company to the plaintiff. Not a particle of testimony was given that the defendant ever received a penny of this money. On the plaintiff’s own showing, therefore, there was no evidence of any trespass of any kind by the defendant, nor of the receipt of any money by him belonging to the plaintiff.
The plaintiff, having testified, closed his case. Thereupon, the defendant’s counsel asked for a compulsory non-suit, which was refused, for what reason was not stated, and we cannot understand. There was no cause of action whatever against the defendant disclosed by the plaintiff’s testimony, and the non-suit should have been ordered as a matter of course. As this w.as not done, the defendant testified and proved that in November, 1873, about six years before this suit was brought, he had a tax duplicate and warrant for the collection of some bounty tax in which the plaintiff’s name appeared as assessed for $29 50 tax. He does not state that he ever did anything with his warrant, he does not even say that he ever delivered any tax receipt to the railroad company, though it might, perhaps, be inferred that he did. . He did say, however, that he never received any money on any tax receipts, and that, having learned that the warrant and duplicate had expired, he paid no further attention to it. It does not appfear that the defendant ever notified the railroad company to deduct the tax receipts he left with them from the wages of the men. ■ But if he had done so and had received the money, there could have been no recovery against him in an action of trespass. At the close of the testimony, the defendant’s counsel proposed certain points to the court, the first of which was that under all the evidence the verdict should be for the defendant. This the Court answered by saying: “If this defendant kept strictly within the meaning of the law, if he simply did nothing more than what the evidence is this case discloses to you, then he is not guilty of trespass, and hence we affirm this point.” Of course, this was a ruling on the whole of the testimony, and an absolute affirmance of the point. But notwithstanding this, the judge allowed the jury to go out and bring in a verdict for the plaintiff. Of course, this could not be. When the point was affirmed, it was the necessary duty of the court to take a verdict from the jury in favor of the defendant, and not permit them to retire. To allow a verdict for the plaintiff after such a direction, was simply bringing the Court and the administration of justice into contempt. It is useless to discuss the question of trespass. There is not a particle of evidence in the case from beginning to end which would justify a verdict for the plaintiff in an action of trespass.
Judgment reversed.