
    Josiah Pease, Jun., versus Ephraim Whitney and Others.
    Where one was assessed for lands lying in a school district, in which it was not legally taxable, but which he had requested the assessors to place to his account of taxable property, and informed them that he was to be taxed for it, it was held that the assessors were not liable to an action of trespass for making such assessment.
    This action was trespass, brought to recover damages for taking the personal chattels of the plaintiff, to satisfy a tax assessed on him for the use of a school district in the town of Upton, in this county, in the year 1804, against the defendants, as assessors.
    * The action was tried upon the general issue, before Sedgwick, J., at an adjournment of the last September term in this county, and a verdict given for the defendants.
    At the trial, it was agreed that the defendants, at the time of the assessment of the tax for which the plaintiff's chattels were dis-trained, were the assessors of Upton, duly elected and sworn ; — that the assessment was duly made for money legally voted by an established school district in that town for the purpose of erecting a school-house in the same district: — that the plaintiff was an inhabitant of that town, residing in a-district other than that for which the tax was granted, and haying lands in his own occupation in the district wherein he resided ; — that the tax, for which the chattels were taken, was for the lands of the plaintiff only which lay in the district first mentioned ; — that the goods mentioned in the plaintiff’s declaration were taken by the collector, and sold in the manner prescribed by law ; — and that they were the property of the plaintiff.
    The lands, for which the said tax was assessed, were not assessed for the use of any other district in the year 1804, nor was the plaintiff assessed in that year for the use of any other school district.
    On the part of the defendants, evidence was given to the jury, to prove that the lands, for which the tax was assessed, were, during the year 1804, occupied by N. Beals, as the tenant of the plaintiff. This evidence was opposed by testimony given on the part of the plaintiff, that Beals occupied the lands merely as the plaintiff’s servant, and for his benefit.
    It was proved by evidence unimpeached and unquestioned, that at a meeting of the defendants as assessors, for the purpose of making a valuation of the taxable property of Upton, at which meeting the plaintiff and Beals were present, the plaintiff desired the assessors, in the presence of Beals, to place the said land, for which the tax was assessed, and which was in the occupation of 
      Beals, vo the plaintiffs account of taxable property, informing them that he * was to be taxed for it; with which request the assessors complied.
    The judge, who sat at the trial, directed the jury, that if they were satisfied that the lands, for which the tax was assessed, were in the actual occupation of Beals, as the tenant of the plaintiff, and not in the plaintiff's own occupation, they ought to find their verdict for the defendants; and otherwise for the plaintiff; and vhey found for the defendants.
    The plaintiff moved for a new trial for the misdirection of the judge; and the cause stood over to this term for the consideration of that motion.
    
      Bangs and Hastings for the plaintiff.
    
      Bigelow and Blake for the defendants.
   In support of the motion for a new trial, it was contended that Beals, being tenant of the land in question, as was established by the verdict, was alone liable by law to be taxed for it, and the plaintiff’s request to the assessors, to act illegally in their office, furnished them no justification. It may be that all the lands in a school district may be in the occupation of tenants; in which case, if the direction in this case was legal and correct, a school-house could never be erected or repaired.

For the defendants it was insisted that the tax was duly and legally assessed upon the plaintiff; — and if otherwise, that his consent and request to the assessors barred him of his action against them.

The action being continued nisi, at the following March term in Suffolk, the Court expressed their opinion that the tax was improperly assessed upon the plaintiff; but that his request to the assessors, that the land might be taxed to him, furnished the defendants with a sufficient answer to an action of trespass against them.

Judgment on the verdict  