
    Nathan George vs. Inhabitants of the Second School District in Mendon.
    Where an application for calling a meeting of a school district contains, in precise and enumerated articles, the objects of the meeting, and such application is annexed to the warrant for calling the meeting, and the person, to whom the warrant is addressed, is therein directed to warn the inhabitants of the district to meet for the purpose of acting on the articles named in such annexed application, those articles are a part of the warrant, as effectually as if they were embodied in it.
    A. school district, at a meeting legally held, voted to build a school house, chose a building committee, and instructed said committee to make a written contract with M. to build the house for a certain sum, pursuant to M.?s proposal: The meeting was then adjourned: At another meeting, called and held before the dav to which the former meeting was adjourned, the district voted to build a school house on a plan then first proposed by D. 3 to purchase a site therefor, according to a proposal then first made 3 to raise and appropriate a certain sum for building the house and purchasing the site thereof 5 and chose a building committee to oversee the erection of the house, to enter into a contract with D. for the building thereof, according to the plan proposed by D., and to take a deed of the site. Held, that the votes passed at the second meeting were legal and binding, and that they, by necessary implication, rescinded the votes passed at the former meeting.
    Where a school district accepted the proposals of a builder, to erect a school house, for a certain sum, with liberty to build a public hall over the same, as the builder's property, he allowing the district to have the use of the hall, free of charge, for meetings of the district, and for examination of the schools, &c. 5 and the house was so built 3 it was held that the district had not exceeded its authority, and that a tax was legally assessed to pay for the house.
    Where a town chooses three assessors, two of whom are sworn, and the third does not refuse to accept the trust, but omits to take the oath of office, and when called upon by the other two, declines to act, and the town does not choose another in his stead, the other two have authority to assess taxes.
    A tax assessed upon the inhabitants of a school district is not rendered void by the omission of the assessors, through misinformation, mistake of fact, or error of judgment, to assign the real estate of one or more non-resident owners to any school district.
    Assumpsit to recover the amount of a tax assessed upon the plaintiff' and collected of him by compulsory process.
    The case was submitted to the court upon an agreed statement of facts, as follows : The plaintiff, at the time of the assess ment of the tax hereinafter mentioned, was an inhabitant of the second school district in Mendon, and liable to taxation therein, and the prudential committee of said district, then and before that time in office, were rightfully chosen. On the 20th of January 1840, fifteen of the legal voters of said district made a written application to the prudential committee to call a meeting of the district, to act on the several articles specified in said application. Among the articles thus specified were the following : “ To see if the district will vote to build a school house. To see how much money the district will raise and appropriate to build and complete said house. To fix upon a site for said house. To do and act on every thing necessary and proper in and about the erecting and finishing of the house.” The prudential committee thereupon issued a warrant for a meeting of the district, to be held on the 1st of February 1840, “ to act on the articles mentioned in the application ” for the calling of the meeting; a full copy of which application was annexed to said warrant, but no articles were inserted in the warrant itself. The person, to whom the warrant was addressed, posted up an attested copy thereof, and of said application, as annexed thereto, seven days before the said 1st of February, conformably to the following vote, passed by said district on the 23d of March 1839 : “ Voted, that all future meetings of this school district shah be warned by posting up a copy of the application and the warrant for the same, attested by the person to whom the warrant shall be directed; and it shall be the duty of the person to whom the warrant for any future school meeting shall be directed, to attest the same, and post up one copy thereof at ” [each of two stores mentioned.] The meeting, thus called and warned, was held on said 1st of February, and said district then voted unanimously to build a school house, and chose a committee to report a plan of a house, an estimate of the cost thereof, and a site upon which it should be erected. The meeting was then ad journed to the 13th of said February, when the report of the aforesaid committee was made to the district, and was ordered to lie on the table. The meeting was then adjourned to the 20th of said February, when the district unanimously voted to accept the plan of a school house offered by J. G. Metcalf, chose S. Dudley, D. Davenport and B. D. Williams, as a building committee, and instructed them to receive proposals for building a house agreeably to the aforesaid plan, and to present such proposals as they might receive, for the further consideration of the district at an adjourned meeting. The meeting was then adjourned to the 5th of March 1840, when the district met and “ voted that the school house be finished by the first day of September next.” The said building committee then reported that they had received proposals for building the school house, from four persons. The district, after having heard all said proposes, voted that the proposal of W. T. Metcalf, to build the house for $ 1550, be accepted, and that the building committee be instructed to enter into a written contract, in behalf of the district, with said W. T. Metcalf, to build the house for the aforesaid sum. The meeting was then adjourned to the 3 2th of March 1840, and from that time to the 27th of May following.
    
      On the 14th of March 1840, the committee of said district, on the written application of 16 voters, including said building committee, issued a warrant for a meeting, to be held on the 21st of said March, to act on the following articles, among others : “ To see if the district will vote to build a school house in said district. To see if the district will fix upon and purchase a site for a school house. To see if the district will raise and appropriate a sum of money sufficient to build a school house, and purchase a site for the same. To see if the district will choose a building committee to oversee and transact all matters and things in any way connected with the erection of a house and the purchase of a site for the same. To see if the district will grant the liberty to have a public hall built over the school house. To do and act on every thing necessary and proper in and about the erecting and finishing of said house.” This warrant was in the same form (as to the annexation of the application for the meeting, &c.) as that which was issued for the meeting on the 1st of February preceding, and an attested copy thereof was posted up in the same manner. At the meet ing held, in pursuance of this warrant, on the said 21st of March, the district voted to build a school house; to accept the proposal of S. Dudley to build a school house, and to sell a site therefor to the district; and to raise and appropriate the sum. of $1700 for the purpose of building a school house and purchasing a site for the same, agreeably to the terms of said Dudley’s proposal. (Said proposal was never submitted to any building committee, nor to the district, before it was read and accepted at said meeting.) The district also chose D. Davenport, B. D. Williams and H. Allbee as a building committee, to oversee and transact all matters and things in any way connected with the erection of a school house, and the purchase oí a site therefor, and to take a deed from said Dudley of the site voted to be purchased of him, and to enter into a written contract with him, in behalf of the district, to build and complete said house agreeably to the terms of his proposals. The follow ing vote was also passed at this meeting: “ Voted, that the district grant liberty to S. Dudley and his associates to build a hall over the school house, which the district have voted to erect, with the privilege of an entrance and stairway in the front entry of said house, in consideration that the district may have the use of said hall, free of charge, for all school district meetings, for all examinations of its public and private schools, and for the delivery of lectures upon the subject of education ; no public meeting being held in said hall, during the usual a ■bool hours, unless by consent of the prudential committee of the district; and the proprietors of said hall insuring the whole building, at a mutual insurance office.” This meeting was then adjourned to the 4th of April 1840.
    The abovementioned proposal of said Dudley was, that he would sell and convey to the district a certain described tract of land for the site of a school house, and would erect the house in the manner stated in said proposal, and complete the same by the 1st of October 1840, for the sum of $1700, pro vided the district would grant liberty to him and his associates to erect a public hall over said house, “upon terms and con ditions mutually satisfactory.”
    On the 23d of March 1840, the building committee, who were chosen on the 21st, and the said Dudley, executed an indenture, in which he stipulated to build said school house, according to the aforesaid proposal, for the sum of $1550; and the committee, in behalf of the district, stipulated that the district should pay him that sum, when he should complete the house to the acceptance of said committee.
    At the meeting held by adjournment on the 4th of April 1840, the district “ voted that S. Dudley and his associates, to whom the district have granted liberty to build a hall over the school house which they are about to erect, also have liberty to construct and build a colonnade upon the front end of said house.” The meeting was then adjourned without day.
    On the 27th of May 1840, the district met, “ pursuant to adjournment from March 12th,” and voted to reconsider the vote passed on the 5th of March, accepting the proposal of W. T. Metcalf to build the school house for $1550; and also to reconsider the v>te, passed on the same day, instructing the building committee to enter into a written contract with said Metcalf to build the school house pursuant to his proposal. The district then “ voted that this warrant be now dissolved.”
    The school house was erected by said Dudley, with a hall over the same, which hall is owned and occupied by him and his associates, for their benefit, under the agreement, above mentioned, as to the use thereof; and the lower part of said house has been, and still is, used by the district for schools.
    No written contract for the building of the school house was ever made with said Metcalf, by the building committee; and no deed of the site on which said house has been built, has yet been delivered to or accepted by said district. Such a deed was tendered to the building committee, on the 27th of October 1841, but was not accepted nor recorded.
    At the annual meeting of the inhabitants of the town of Mendon, held in April 1841, A. Wilder, W. A. Hall, and N. Cowen were chosen assessors for the year then ensuing. The two former accepted the office, were duly qualified, and acted as assessors, during that year. Said Cowen did not accept, and was not qualified. When notice of his appointment was given him by a constable, he made no reply; and on being subsequently requested by the other assessors to act with them, “ he sent notice by the same constable, declining to act,” and never did act with them. No other assessor was appointed for that year.
    On the 11th of August 1841, said Wilder and Hall (as appears by their record) made the “assessment of a tax of $1700. raised by a vote of the second school district in Mendon, on the 21st of March 1840, as certified to us by the clerk of said district, upon the estates liable to taxation in said district, for the purpose of erecting a school house in said district.” And on the same day, a warrant for the collection of said tax was committed by said Wilder and Hall to S. Taft, treasurer and collector of taxes for said town, who committed the same to D. Ross, deputy collector, duly appointed by said Taft. On the 22d of September 1841, said Ross collected of the plaintiff the part of said tax which was assessed upon him, namely, $ 151-99, by compulsory process.
    
      In determining in which school district the lands of nonresidents should be taxed, the said two assessors did not determine in which district certain real estate, called £ the bank house and lot,’ owned by the United States Insurance Company, at Boston, and other estate, (hereinafter described) owned by the heirs of Betsey Wilbur, should be taxed. Said bank house and lot have been taxed, every year since 1836, to W. S. & C. C. P. Hastings, with their knowledge and consent, and have never been assigned to any school district, as non-residents’ estate, by any board of assessors. No one of the heirs of Bet-sey Wilbur has resided in Mendon, within the last twelve years. In November 1839, a tract of land, which had been the dower of Martha Fairbanks, was divided, on her decease, among her former husband’s heirs, one share of which, appraised at $140'41, was assigned to said heirs of Betsey Wilbur; and Mercy Legg of Mendon has since had the occupation of said share. She has also had possession of the share of said Betsey Wilbur’s heirs in a former division of the estate of said Martha’s husband, and has paid the taxes on the same, which have been set to her, for many years. Said share in the dower aforesaid has not been taxed, since it was assigned to said heirs of Betsey Wilbur. The only fact, relied on by the plaintiff, to bring to said two assessors the knowledge that said estates belonged to non-residents is, that one of said assessors resided, for several years previously to 1841, within a short distance of said estates.
    In 1840, L. Callam was one of the board of assessors for the town of Mendon, and occupied a part of the house included in the dower above mentioned, which belonged to the heirs of said Betsey Wilbur; and the share thereof which was assigned to said heirs, in thp division aforesaid, was in the immediate vicinity of the house so occupied by said Callam. The assessors of 1840, (including said Callam,) besides assessing other taxes, assessed on the inhabitants of the second school district a tax of the like amount, and for the same purpose, as the tax brought in question in this suit. Yet said assessors did not include, either in the county, town, or school district tax, made by them, the said estate of the heirs of Betsey Wilbur, nor was the same assigned to any school district, as the property of non-residents. Nor did the said two assessors of 1841 either assign said estate to any school district, or assess the same in the tax now in question; nor has the same ever been assigned, by any board of assessors, to any school district.
    Said Dudley has recovered judgment against the defendants, on his aforesaid contract for building said school house.
    
      Hallett, for the plaintiff.
    1. The “subject matter” to be acted upon at the meeting of February 1st, was not “ inserted in the warrant for calling the meeting,” as the law requires. It was merely attached to the warrant, in a copy of the application for the meeting. The warrant was therefore void. A fortiori of the warrant for calling the meeting of March 21st.
    2. If the first warrant was not void, yet the district, at the first meeting and the adjournments, exhausted the matter of the warrant, so that a second meeting, on the same subject, could not legally be called, until the proceedings at the first had been reconsidered and rescinded; especially while the first meeting stood adjourned. Besides; the district had delegated its authority t.o a committee, and could not delegate it again, without revoking the first act of delegation.
    There was no article, in the warrant for the second meeting, as to the consideration of a proposal for building, yet such proposal was the subject of the first and main action of the district at that meeting. It was precipitately adopted, without being 'first referred to any committee for examination. The district could not, under this warrant, if under any, vote to build a house, the roof of which they could not repair without commit-ing a trespass. Loring v. Bacon, 4 Mass. 575.
    3. There was no board of assessors in Mendon, in 1341. Three were chosen,- two only were sworn and acted, and there was no choice of another to supply the place of him who refused to aci. Thus the smallest number of assessors, that the law permits to act at all, assessed the tax in question, without the assistance or correction of another, and contrary to the spirit of the statutes. Rev. Sts. c. 15, <§>§ 33 36, 40, 42 Ahord v. Collin, 20 Pick. 424.
    
      4. Estates of non-residents were neither taxed nor assigned to any school district, as the law requires, and the tax, for this reason, is illegal and void. Rev. Sts. c. 23, '§>'§> 33, 35. Taft v. Wood, 14 Pick. 362.
    
      Washburn, for the defendants.
    1. The “ subject matter ” was, in legal effect, inserted in the warrants for calling the meetings of the district; as the warrants referred to an accompanying paper, which set forth the matter with particularity.
    2. Assuming that the first and second meetings were both legal, the proceedings of the district at both were legal, so far as they went; there being no law to prevent the building of more than one school house by a district. Williams v. School District in Lunenburg, 21 Pick. 82. There is nothing in the revised statutes which prohibits a district to build a school house in connection with another owner. See Spaulding v. City of Lowell, 23 Pick. 71. And the expense of the house, thus built by Dudley, was the same that was to have been paid to Met-calf for the house which he was to have built, viz. $ 1550.
    But the votes at the second meeting rescinded, by necessary implication, the votes at the first. In addition to this, the votes passed at the first meeting were actually, and in form, rescinded, as they legally might be, before any measures were taken under those votes. Pond v. Negus, 3 Mass. 230.
    3. The two assessors who were sworn had authority to act, after giving notice to the third. 21"Pick. 76. Sprague v. Bailey, 19 Pick. 436. By Rev. Sts. c. 15, <§>42, a town may fill a vacancy in a town office, but is not required to do it; and by <§> 37, county commissioners “ may appoint three or more assessors,” when a town neglects to choose selectmen or assessors, but have no authority to appoint one, where one omits to act. Until the town chose to consider that there was a vacancy in the board of assessors, the third assessor might have taken his oath, and then have acted with the other two.
    4. The case of Taft v. Wood, 14 Pick. 352, was decided under St. 1826, c. 143, which has been changed by Rev. Sts. c. 23. The bank house and lot cannot be regarded, in a school tax, as property of non-residents, under the revised statutes, as the tax thereon has been long set to residents in the district, and been paid by them. And the accidental omission to tax a fractional part of the Wilbur estate, or to assign it to any school district, will not vitiate the tax. Inglee v. Bosworth, 5 Pick. 501. ÁIvord, v. Collin, 20 Pick. 426 — 431. Watson v. Inhabitants of Princeton, 4 Met. 599.
   Shaw, C. J.

This action is brought by an inhabitant of the district to recover a sum of money, as had and received by the defendants to his use, and it is presented to the court upon an agreed statement of facts. The ground is, that the plaintiff has been compelled, by force of legal process, namely, an assessors’ warrant, to pay over to the collector the sum in question, as a school district tax, which was illegally assessed, and wrong fully demanded of him.

That payment on a demand made by force of such process, when the party called upon must pay or suffer his property to be taken, or his person to be arrested, and where he has no day in court to answer, is a payment by compulsion, has been repeatedly decided. Preston v. Boston, 12 Pick. 7. Dow v. First Parish in Sudbury, 5 Met. 73. It does not appear, by any fact stated in the agreement, that this money has ever been paid over by the collector -to the town treasurer, as required by law, to the use of the school district, or to any officer or agent of the. district ; and there would certainly be a technical difficulty in holding that this corporation has received any money, as the facts now stand. But this is merely technical, and may perhaps lead only to an amendment, or new trial; and as no objection on this ground was taken at the argument, we have preferred to proceed and consider the points made in the argument.

The tax in question was a tax of $ 1700, voted by the school district to be raised for the purpose of building a school house, at a meeting of the school district held on the 21st of March 1840.

1. The first objection to the regularity and validity of this meeting is, that the warrant did not embody and specify the various subjects, upon which the inhabitants of the district were called to act. It is difficult to apprehend the nature and force of this exception. This warrant is before us, together with the whole of the school district records relating to this subject. These records are not only kept in a very legible and elegant hand writing, but they manifest a neatness, order and perspicuity, throughout, seldom seen in corporation records of much larger bodies. They appear to have been kept and certified by Mr. John G. Metcalf, who was clerk of the district during the entire period of these transactions.

It appears by the record, that an application was made to the committee by the requisite number of inhabitants; that there upon the committee transcribed the application, which states with precision, and in enumerated articles, all the objects for which the meeting is called. Then, upon the same paper, they annex their warrant to the clerk, directing him to call a meeting of the inhabitants, at a time and place named, to act on the articles named in the annexed application. This form makes the articles a part of the warrant, as effectually as if they had been embodied in it. It is a general rule, that when an instrument refers to a paper annexed, it becomes part of the instrument, as if it were embodied in the descriptive part of the paper itself, especially when, as in this case, the application was directed to be attested by the clerk, and the warrant to be posted up. The same rule applies to deeds and other instruments. Indeed, it is the usual form adopted in calling meetings of proprietors of common and undivided lands, as we often see in the newspapers. So the same form is commonly used when a justice of the peace calls a meeting of towns or parishes, on the application of inhabitants. There is a convenience in this, because it expresses with exactness the purposes for which the meriting is requested by those who by law have a right to request it, and the authority under which the magistrate acts, who, in this respect, is a ministerial officer.

2. Another point was taken in this connection, which is, that when the district voted, on the 21st of March, to build a school house; to contract with Dudley, and accept his proposal; to authorize the erection of a hall over the house, and a colonnade m front of it, and to assess a tax of $ 1700, to meet the expenses of such building and the site for it; the proceedings were irregular and void, because the district, at their previous meeting, bad already adopted a different mode of proceeding, had agreed to accept the proposal of William T. Metcalf, and therefore had exhausted their power on the subject.

In the first place, the authority given to the first building committee was a naked authority, and might be revoked ; and doing an act quite inconsistent with it was a revocation, as much as a reconsideration of the former vote, or revocation in terms. Whether William T. Metcalf derived any right under that vote, depends upon other facts not stated, and is a very different question, not now open.

The question is, whether the vote of the district, on the 21st of March, by which the tax in question was laid, was a legal vote. The district had had several meetings, by which they had adopted a plan, agreed to employ Metcalf, and appointed a building committee, consisting of Davenport, Williams and Dudley. The last of these meetings was held on the 12th of March, and was then adjourned to the 27th day of May. On the 14th of March, two days after this adjournment, all the members of this committee, together with other legal voters of the district, exceeding fifteen, joined in an application to the committee to call another meeting, to be held on the 21st. The probability is, that the committee, when they came to execute the powers vested in them by the district, found a new proposition from Dudley, one of their own number, which they thought would be more beneficial to the district, and which they thought ought to be submitted to their constituents, before they proceeded to carry the former votes into effect. But, whatever were their motives, it is manifest, from their joining in the call, that they thought another meeting expedient, and that the interests of the district would suffer by a delay till the time of the adjournment. The question is, whether this was a legal meeting; and the court are of opinion that it was. It is not questioned that it was rightly called, as an original meeting, and would be valid, i me district had not before met and voted on the same subject, and adjourned. But it seems to us that, until the former votes had been carried into effect, the whole subject was still in their power; that they might revoke the authority given to their committee, and adopt a different plan : and that this might be done at any meeting duly called, warned and held. The powers of a corporation, or other aggregate body, are not taken away or superseded by an adjournment to a future day. New facts may arise, new interests accrue, which may render it necessary to the body, that votes already passed should be rescinded or modified, or new measures adopted. It would be a great and unnecessary restriction upon the powers of such a corporation, and a detriment to its best interests, if it were rendered incapable of acting in the mean time, by an adjournment to a future day; an adjournment voted when no such exigency existed or could be foreseen. Both are legal meetings. It is .the same body reconsidering its doings under other lights, in reference to its own interests. The power of acting always exists, and if called into action, in the manner provided by law, whether it be by means of an adjournment, or by an original warrant, it is still the same body, exercising the same powers, for the same purposes, and therefore its votes and doings are of the same efficacy.

It is said that the vote of March 21st did not rescind that ot March 12th, and those which preceded it, and therefore both might have been carried into execution. If not a revocation in terms, we think it was so by necessary implication. It is a mode of accomplishing the same object, the building of a school house, by different means, and was therefore repugnant to the former, and rescinded it, by implication. Besides; the same committee were appointed to execute the latter vote, who had been appointed to execute the former, with the exception of Dudley, (for whom Allbee was substituted,) and who was himself the contracting party, under the latter. This carried a clear impli cation, that the district intended to substitute the one plan for the other, and afforded the best security to the district, that both would not go on at the same time. Perhaps, in this view, in determining whether the vote of March 21st was valid and binding, it is not very material to consider whether, in point of law, the former votes were rescinded, or not. They were never in fact carried into execution; and at the adjourned meeting in May, for greater caution, they were reconsidered, and rescinded, in terms. If they had already been legally rescinded, this vote was merely immaterial; if not, it effectually annulled them.

It is objected, that this change of purpose of the district was hasty, and that the subject was not first referred to a committee. The reference of any subject to a committee, by a deliberative body, is a matter of expediency, often convenient, but not necessary to its action.

It is also objected, that the stipulation with Dudley, authorizing the erection of a second story for a hall, and a colonnade >n front — the hall to be for the occasional use of the school, and with certain rights therein to the contractors — was not' within the power of the district, and rendered its proceedings void. This also was matter of expediency. If the district considered that a hall, or the occasional use of a hall, would be beneficial to the school, we think it was within their power to provide for it, as incidental to the general power to provide a school house. Spaulding v. City of Lowell, 23 Pick. 71.

We cannot take into consideration various other objections, turning upon the questions, whether the site of the house was a good one ; whether the contract was beneficial or judicious, &c.; these were questions for the consideration of the district, to be determined according to their view of their wants of a school house and its incidents, and are entirely within their jurisdiction. In the exercise of this power, they are confined strictly to the purpose for which the law vests them with it, that of building a school house for the district. If, under color of this corporate power of a school district, the inhabitants should vote to erect an expensive and ornamental building, with a view to improve the neighborhood, to enhance the value of real estate, to accommodate societies, lecturers, dramatic exhibitions, or even to have a convenient place for religious meetings or public worship, or for any other use than that of a district town school, it would not be within the legitimate authority of a school district; and any vote to levy a tax on the inhabitants, for such purpose, would be void.

3. The next objection is, that when this tax was assessed, there was not a full board of assessors, chosen and qualified to act within the town. This, we believe, in the form and under the circumstances in which it is now presented, is a new question. It appears, by the facts stated, that three assessors were duly elected by the town, at their annual meeting; that two of them were forthwith sworn, and thereby became qualified to act; but that the other one was not sworn, and, when notified of his election, made no reply; that he never in form declined to accept the office, but, when called on by the other two to act with them, he sent notice to them declining to act. But he gave no notice of this to the town, and the town did not proceed to treat his neglect to take the oath, as a vacancy, by choosing another in his stead. The law requires the town, at their annual meeting, to choose three or more assessors. Under these circumstances, the court are of opinion, that when three assessors are duly chosen by the town, there is a board of assessors. Each is an assessor. But, until qualified, by taking the oath, he is not legally competent to act. If a majority do qualify, by taking the oath, and the third has not taken the oath, still, if he has notice of their proceeding to execute the office, and declines to take the oath and act with them, their acts will be good, in the same manner as if he had taken the oath, and declined to act with them; because he is an assessor and the office is full. He may, at any time, take the oath, and thus be a qualified assessor; unless he has legally expressed his non-acceptance, or unless the town, in consequence of his neglecting or declining to take the oath of office, has filled the vacancy, by electing another in his place. Whether the town may thus proceed to treat his mere neglect to take the oath, as a non-acceptance, and thereupon fill the vacancy, it is not now necessary to decide. Probably, from the necessity of the case, especially if a majority of those chosen should thus neglect, they might do so to avoid penalties to which they might be otherwise liable. Rev. Sts. c. 15, <§.<§> 35, 36, 42. But, until the town has so done, and filled the vacancy, the office is still full; there is a board, and of these, by force of the statute as well as by long usage, the majority may act.

We are therefore of opinion that the tax in question was lightly assessed by the two assessors, being a majority of the board. Williams v. School District in Lunenburg, 21 Pick. 82. Sprague v. Bailey, 19 Pick. 436.

4. Another objection is, that there were lands of non-residents in the town, not assigned to any school district; and the case of Taft v. Wood, 14 Pick. 362, is relied on to show that the tax, on that account, was void. In that case it was held, that where no assignment of such lands for taxation among the school districts had been made by the assessors, and certified to t‘he town clerk, according to law, (St. 1826, c. 143, § 11; Rev. Sts. c. 23, § 35;) a tax could not be legally assessed. That case went on the ground that the tax on the property of non-resident proprietors was a fund belonging to the town, and required by law to be appropriated to the several districts, upon some principle of equality, as well for the security of the owners, as of the several school districts; and that when the assignment and distribution were made, they were permanent, until the school districts should be altered. The objection was, not that the assessors, in that case, had not assigned some certain particular estate, but that neither they nor their predecessors had made any assignment and distribution of the non-resident real estate, and therefore failed to comply with a requisition of law, the observance of which is necessary to the equality of taxation. But the present case is not within the principle on which that is founded. Here, it is not suggested that an apportionment of the non-resident real estate had not been made and certified to the town clerk, but that certain specific real estate, belonging to some non-resident owners, had not been included in the assignment.

It is quite doubtful, upon the facts, whether the parcels of real estate specified were taxable as the property of non-resident owners. The bank house had always been taxed to residents, as owners or occupants, and the tax had been paid. So the Wilbu estate was usually occupied or improved by a resident. But the decisive answer is, that the omission of assessors to tax particular property, through misinformation, mistake of fact, or error of judgment, does not render the whole tax void. Williams v. School District in Lunenburg, 21 Pick. 81, 82. Watson v. Inhabitants of Princeton, 4 Met. 599. Supposing therefore, upon a more full examination, that such real estate was liable to taxation, the omission of the assessors could only be considered as a mistake, or error of judgment, and would not avoid the tax.

Plaintiff nonsuit.  