
    Benjamin Thurston versus Silas Little and Others.
    Assessors of parishes must make a list, and valuation of the taxable property before assessing a tax, or the assessment will be illegal and void.
    Trespass for an assault and battery, and false imprisonment. As to the force, &c., the defendants plead not guilty, and issue is joined by the plaintiff. As to the residue of the trespass, they justify as assessors of the first parish in Newbury, for the yeai 1804, and set forth sundry resolves of the General Court, authorizing the assessors to reassess the parish taxes for the year 1796, which had been found illegally assessed, and their proceedings in pursuance of said resolves. The plaintiff replies de injuria sua proprio, and traverses the legal reassessment in 1804. The defendants join issue upon the "traverse, and upon trial of these issues, before Sewall, J., at the sittings after the last November term in this county, a verdict was rendered for the plaintiff, I * 430 ] * subject to the opinion of the Court upon a report of the case by the judge who sat on the trial.
    In support of their special justification, the defendants produced at the trial a book containing what they contended ought to be considered as a list and valuation required by law. On the first page of this book was written a schedule of taxable articles, including real and personal estate, as houses, acres of land of different, descriptions, horses, cattle, &c., and a value or price set against each article. The rest of the book .contained the tax for the year, in which was the plaintiff’s name, and the amount of 15 dollars, 68 cents, set against it, as the tax on his poll and estate. And it was admitted that the plaintiff was, in 1796, a resident in the said first parish, and there liable for parish taxes; and that a notification was made to the inhabitants to return a list of ratables, and that no sts were brought in previous to the assessment in 1796.
    It clearly appeared in evidence that no other list, or valuation, or invoice, than the one above described, had been prepared.
    And now, Prescott, for the defendants, in support of a motion for a new trial, observed that the parish had made great efforts to levy a tax for the laudable purpose of supporting public worship, that they had been much harassed with lawsuits arising out of objections to the form of the assessments, and they had hoped that the act of the legislature, confirming the doings of the assessors, notwithstanding any informality or irregularity, would have been quietly acquiesced in. They had still to hope for the favorable disposition of this Court towards officers who had acted with fairness and impartiality, and relative to a subject of great and general importance.
    In this case, the inhabitants bringing in no lists of their respective taxable estates, it was impossible for the assessors to prepare a general list; they cannot be held to measure the several inclosures which constitute the farms of the parishioners, or to count their stock of sheep, swine, &c. All that was left for them to do, was to make the best conjecture they could of each man’s ability to pay, and to tax him accordingly—a practice very generally known by the term dooming. To have made a formal list of such con- [ * 431 ] jectures would * have been but an idle and useless labor. The objection, however, if it has weight in it, comes very improperly, and, it is contended, ought not to be received from a parishioner, who, it is agreed, was legally liable to be taxed, and yet wholly neglected to carry in a list of his ratable estate, by which the assessors would have been enabled to make a valuation of it
    This observation is strengthened by the provision of law that such persons as neglect to bring in to the assessors lists of their polls and estates, are ■ precluded from applying to the Sessions for an abatement of the assessment laid on them.
    To show that the general practice of assessors was as informal as what appeared in the present case, Prescott produced a number of certificates from various towns in this county to that effect; and he argued that the declaring this assessment to be illegal for this cause would operate a very extensive mischief.
    
      Jackson
    
    was about to argue in support of the verdict; but the Court discovering an opinion that the book did not contain such a \al nation as was necessary to render an assessment legal, he submitted the cause without argument for the plaintiff.
    
      Livermore, for the defendants,
    observed that this business of making taxes, and other duties of municipal and parochial officers, must of necessity be performed by persons who had little or no technical learning; that they naturally thought that they did all that was to be expected from them, when they were as correct as their neighbors, and especially when they followed the steps of their predecessors; that the laws, prescribing their duties, were intended rather as a general directory to them, to which they were substantially to conform, than as a precise formula, the slightest deviation from which is to vacate their whole doings ; that a decision, which should involve the necessity of an accurate and strict conformity to the formal prescription of the statutes in officers of this description, would throw the commonwealth into confusion. The mode adopted by the defendants in this case, however loose and improper it may appear when viewed by the scrutinizing eyes of men of learning and accuracy, is very generally followed by assessors throughout the state.
    * The Court have evidence of the general prevalence [ * 432 ] of this loose method, and certainly a strong argument ah inconvenienti arises from this fact. But if it shall appear in any case that assessors have omitted some formal part of the duty required by law of them, it would be quite enough to give the party injured his remedy according to the damage he may show that he has sustained ; it is too much to involve the whole community in the mischief by declaring the tax void in toto, and thus embarrassing the fiscal concerns of a town or parish for a whole year, for a trifling defect in form in the proceedings of their agents or servants. In this case there is no pretence that the tax is not perfectly equal; there is no intimation of want of integrity in the defendants, or that the plaintiff, if he had paid his tax as an orderly and well-disposed citizen would, without this litigious appeal to the law, would have paid one cent more than his just proportion.
   By the Court

The statute expressly requires assessors to make and lodge in the clerk’s office, or in their own, if they have one, an invoice or valuation, from which the rates or assessment shall have been made, together with an exact copy of the assessment, that the inhabitants, or others rated, may inspect the same.

If we could discover neither the necessity nor use of this provision of the law, it would not be for us to dispense with it. But many valuable purposes are answered by it. In case of farms in the occupation of tenants, the tenant is liable to be taxed for the whole farm, with the stock, &c., upon it; but there may be a special agreement between him and his landlord, that the tax on certain parts of the property shall be paid by one, and the remainder by the other. For this purpose it is necessary and proper that they be able to ascertain the amount of the tax on the several parts.

Further, how is a person taxed to show his estate overvalued by the assessors, in comparison with those of his neighbors, if no valuation is made, or open to inspection ? How is he to make his appeal to the Sessions for the same end, when the assessors refuse to do what he thinks just, unless he can show that he is taxed for more property than he possesses, or that what he does possess [ * 433 ] has been valued too high ? To this * it may be added that every one taxed has a concern in the whole valuation and assessment; for if they are illegal in any part, any one may iesist payment of the portion of the tax demanded of him.

The public revenue of this commonwealth arises principally, and that of towns and parishes arises wholly, from assessments upon polls, upon the value of property possessed by the citizens, and upon their income from their several occupations and employments; and ' not, as in most other countries, by taxes upon certain specific articles. This value can only be ascertained, for the purpose of assessments, from the returns to be made by the persons liable to taxation, and, in case of their failure or neglect, by an estimate to be made by the assessors, known in our country by the word dooming. In whichever of these modes the result is obtained, it is equally required by law that a list and valuation of each individual’s taxable property be made and preserved for the inspection of all interested in the assessment. This furnishes a considerable check to the assessors, and affords a protection to the citizens against prejudice, partiality, or inattention.

In the case before us there appears to have been no such lists and valuation made by the assessors of the parish, nor any by those of the town, a reference to which latter by the parish assessors might perhaps have been sufficient. The book submitted to us was the only one existing. This must be either a valuation, or an assessment ; it cannot be both; indeed it is merely an assessment. The first page, which is the only part that bears any resemblance to a valuation, contains no list of the number, nor estimate of the value of the taxable articles possessed by the respective inhabitants or other persons liable to assessment. To receive this as evidence of a compliance with the statute, would be to render null and void all its beneficial intentions in this regard, and to preclude all remedy against the carelessness or corruption of assessors. However upright and well-intentioned * the conduct of the [ * 434 J defendants in this case may have been, an adherence to these requirements of the law is too necessary to permit us to dispense with them, and there must be

Judgment according to the verdict.

0J” The Chief Justice, having been of counsel for the defendants, did not sit in this cause.  