§ 749. The rule concerning the liability of a party upon a note given for the payment of taxes during the existence of the Southern Confederacy has been in substance thus stated: A de facto government, able to maintain its supremacy by its arms, may exercise the power of taxation. But after it has assessed a tax, if it is overthrown before the tax is collected, and the power of the rightful sovereign is re-established, the tax will not be enforced. Those who have paid the tax have no redress, since they can look only to the defunct government; but those who were not compelled to pay during the existence of the government, will not be liable afterwards upon any notes or securities given for it.1
1 Brown, C. J., in O'Bryne v. Savannah, 41 Ga. 331, 336 (1870). This was the case of a note given for taxes assessed by the authorities of Savannah during the war. In general, if an illegal tax be assessed and collected under protest, the amount may be recovered in an action for money had and received. Newman v. Livingston Co., 45 N. Y. 676 (1871); Lorillard v. Monroe, 11 N. Y. 392; Mygatt v. Chanango, lb. 563; Chegaray v. New York, 12 N. Y. 220; Chapman v. Brooklyn, 40 N. Y. 381; Joy v. Oxford, 3 Greenl. 131; Preston v. Boston, 12 Pick. 7; Goodrich v. Lunenburg, 9 Gray, 38 (1857); Middlesex Railway Co. v. Charlestown, 8 Allen, 332 (1864); Bacon v. Barnstable, 97 Mass. 421 (1867); Carleton v. Ashburn-ham, 102 Mass. 848 (1869). See Barrett v. Cambridge, 10 Allen, 48 (1865); Gerry v. Stoneham, 1 Allen, 319 (1861); Tobey v. Wareham, 2 Allen, 594 (1861); Tinslar v. Davis, 12 Allen, 79 (1866); Salmond v. Hanover, 13 Allen, 119 (1866).