
    Bristol Manufacturing Company vs. Silas R. Gridley.
    An assessor, of a town altered an assessment list after it had been perfected and lodged with the town clerk, and after his power over it had ceased, in such a manner that the property of the plaintiffs was rated at a higher sum than before the alteration. The selectmen of the town afterwards made out a rate bill, in which the plaintiffs were charged with the increased amount, and procured a tax warrant, which they placed in the hands of a collector. The plaintiffs refusing to pay the illegal portion of their tax, the selectmen, with full knowledge of all the facts, directed the collector to levy upon their *goods for the amount. The collector made the [ *202 ] levy, and the plaintiffs then paid the tax, and afterwards brought an action of trespass on the case against the assessor for the injury. Held, that the injury to the plaintiffs, in being compelled to pay the tax, resulted consequentially from the unlawful act of the defendant in altering the assessment list, and that the plaintiffs were entitled to recover. [Storks, C. J. dissenting.]
    Held also, that the act of the defendant in altering the list was to be regarded as having expended itself, as a direct act, in such alteration, so that the issuing of the tax warrant and the levy of the same upon the goods of the plaintiffs, especially with the intervention of the independent agency of the selectmen, was not to be considered as done by the direct procurement of the defendant, so as to make him liable in trespass, but as resulting consequentially from his act, so as to make him liable in trespass on the ease. [Storrs, C. J., dissenting.]
    All damage of which the law takes notice, must be the natural and proximate effect of the wrongful act charged; and the only difference between general and special damage is, that the former necessarily results from the wrongful act, w’liile the latter does not, the wrongful act being still the natural and proximate cause of both. And special damage must be specially alleged solely for the purpose of giving the defendant notice of the plaintiff’s claim with regard to it, while the defendant is held to take notice, without any special allegation, of such damage as is the necessary consequence of his act.
    In the above case the defendant had not returned the assessment list to the town clerk until the 24th of February, while the statute required that it should be returned on or before the 15th of December. An act was passed in May following, after the alteration of the list, validating all assessment lists not returned within the time prescribed by law. Held, that the list in question was validated by the act for all purposes, and so as to make it a valid list at the time it was altered by the defendant; and that if it were not so, the defendant could not be allowed to set up in his defence his own omission of duty.
    
      Action on the case for- damage caused to the plaintiffs by an illegal alteration of their assessment list by the.defendant, by means of which the tax of the plaintiffs was increased. The declaration .contained two. counts., not essentially different, one of which is given in full in a former report of the case, 27 Conn., 221. The principal facts of the case are also there stated.A n„ew trial having at that time been granted, the case was tried again to the jury, and a verdict rendered for the plaintiffs. After the verdict, the defendant movedtin arrest of judgment for the insufficiency of the declaration, and also for a new trial for errors in the rulings and charge of the court, both which mo- [ *203 ] tions were reserved *for the advice of this court. The points presented by the motion for a new trial were the following:—
    1. It appeared that the assessment list was not returned to the office of the town clerk by the assessors, .of whom the defendant was one, until the 24th day of February, which was more than two months after the time prescribed by the statute. . The alteration made by the defendant was made on the 25th of February, after the list had been returned. At the session of the General Assembly, in May following, an act was passed validating all assessment lists not returned within the time required by law. The plaintiffs offered in evidence the assessment list in question, and the defendant objected to it as not having been, at the time of the alteration of the same, a legal and valid assessment list, as averred by the plaintiffs in their declaration, and claimed that the validating act could not give it a validity that should relate back to that time, and make the act of the defendant an unlawful one, when it would not have been so otherwise. The court overruled the objection and admitted the evidence.
    2. - The defendant offered evidence to show that, upon the plaintiffs refusing to pay the portion of their tax which they claimed to be illegal, he stated all the facts to the selectmen, (of whom he was one, but with whom he declined to act in the matter,) and left it to them to decide whether the tax should be reduced, or should be enforced against the plaintiff's, and that they directed the collector to proceed forthwith to collect the same. The defendant thereupon claimed that, even if the alteration was unlawful, yet, that the alteration was not the direct cause of the levy upon the plaintiff’s, property under the tax-warrant, but that the directions of the -selectmen were to be regarded’as the cause, and that consequently, those directions .not being, themselves caused by the alteration, but being the independent and voluntary act of the selectmen themselves, there was no legal connection between the defendant’s act in making the alteration and the injury done to the plaintiffs by the levy ; and he prayed the court to charge the jury that, if the facts should be found to be as claimed by him in this respect,- the plaintiffs could not *recover. The court [ *204 ] charged the jury that the action of the selectmen in . directing the levy, although it might make them liable, would not affect the right of the plaintiffs to recover against the defendant for the wrongful alteration.
    
      L. F. Robinson, (with whom was C. Chapman,) in support of the motions.
    1. The declaration is insufficient. Its form is that of an action on the case, while it states facts for which trespass alone is the appropriate remedy. The objection is fatal. Savignac v. Roome, 6 T. R., 125. Day v. Edwards, 5 T. R., 648. Agry v. Young, 11 Mass., 220. Humiston v. Smith, 22 Conn., 19. 1st. The remedy for injuries to property under an invalid assessment of taxes, is trespass and not case, whether brought against a party procuring, or issuing, or executing the void process. Assessors of an illegal tax are liable only in trespass, when property is seized to enforce the tax. Agry v. Young, supra., 220. Freeman v. Kenney, 15 Pick., 47. Thames Mfg Co. v. Lathrop, 7 Conn., 550. Withington v. Eveleth, 7 Pick., 106. Suydam v. Keys, 13 Johns., 444. Gage v. Currier, 4 Pick., 399, 404. Little v. Merrill, 10 Pick., 543. Sullivan v. Jones, 2 Gray, 570. For all injuries caused by the procurement and use of void legal process, trespass only can be sustained. Zachary v. Holden, 2 Jones, 453. Spencer v. Perry, 17 Maine, 413. Williams v. Brace, 5 Conn., 190. Fernley v. Worthington, 1 Mann. & Grang., 491. Blood v. Sayre, 17 Verm., 609. Houlden v. Smith, 14 Adol. & El., N. S., 841. All parties who participate in setting in motion the illegal proceedings are principals and joint-trespassers in the act of seizure done under it. Sullivan v. Jones, supra. Allen v. Gray, 11 Conn., 95. Groman v. Raymond, 1 Conn., 40. Adkins v. Brewer, 3 Cowen, 206. Coltraine v. McCain, 3 Dev. 308. Cooper v. Harding, 7 Ad. & El., 928. Tatum, v. Morris, 19 Ala., 302. The principle is as applicable to those who expressly procure the void process as to those who execute it. Curry v. Pringle, 11 Johns., 444. Parsons v. Loyd, 3 Wils., 341, 368, 376. Parsons v. Loyd, 2 W. Bla., 845. Judson v. *Cook, 11 Barb., 642. And to [ *205 ] those also, in whom, by reason of their connection with the proceedings, a request is implied ; as, for instance, the magistrate who issues a void writ. Merritt v. Reed, 5 Denio, 352, 4. Perry v. Mitchell, id., 587. Smith v. Luce, 14 Wend., 237. Watson v. Bodell, 14 Mees. & Wels., 57. Or the principal, and even the sureties, in a bond of indemnity given to. the officer who executes the writ. Davis v. Newkirk, 5 Denio, 92. Wetzell v. Waters, 18 Mo., 396. Or a party who makes a representation with a direct intent to set in motion the void process. Flewster v. Pwyle, 1 Camp., 187. The act charged upon the defendant was ,a part of the illegal proceeding against the plaintiff’s property; if not, it was at least 'a representation that the plaintiffs were properly taxable under the excessive assessment, and, being averred to be intentionally done,, it was a direct participation on his part in an act of direct force. The reáson why case can be sustained against a party who -improperly procures legal' process, but not against the party knowingly instigating void process, is obvious. In the former case, the injury is committed indirectly, through the medium of the law. In the other case, the process is a nullity; the law-does not intervene; and the connection between the act of procurement and the act of injury is so direct, that the executing' officer is the mere agent of the party who moves the process. There is no legal distinction between doing and causing to be done, when no independent agency is interposed between the first cause and the ultimate effect. Prickett v. Gratrex, 8 Adol. 6 El., N. S., 1020. Agry v. Young, supra. 2d. The declaration is insufficient, even if case is a. proper remedy. It does not state that the issuing of the warrant was. the consequence of the alteration of the tax-list. Unless the selectmen who ordered the warrant were misled, or in some.manner induced by the alteration to do so, (which is not averred,) their act could not have been the consequence of the defendant’s. A declaration in case must show that the injury complained of is the natural actual consequence, or else the legal consequence, of the unlawful act charged upon the defendant. Haddon [ *206 ] *v. Lott, 29 Eng. L. & Eq., 215, 219. If the declaration is to be construed as averring that the alteration caused the ordering of the rate-bill, and nothing more, the allegation is, in a legal view, paradoxical and nugatory. A void act can not, per se, be the cause of a legal injury, and has no legal consequence. Owen v. Leigh, 3 Barn, & Cress;, 470.
    2. The proof of a void assessment list was improperly admitted to sustain the averment that an assessment- list liad been altered. The list was a legal nullity, not having been duly returned. Thames v. Mn’g Co. v. Lathrop, 7 Conn., 550. And the court erred in deciding that it was so validated by the statute of 1855, as to render an act, innocent and lawful when done, unlawful and actionable. Courts will not construe laws, justly retroactive for some purposes, to be so for other purposes, and to a greater extent than the beneficial object of such statutes requires. Thames Mn'g Co. v. Lathrop, supra. Statutes imposing penalties, or creating liabilities, for acts involving no such responsibility when performed, can not be sustained. Falconer v. Campbell, 2 McLean, 195, 211.
    8. The court erred in charging the jury that the intervention of the selectmen, who caused the levy voluntarily, after being informed of the invalid act of the defendant, and who thereby adopted it did not affect the defendant’s liability. This adoption would of itself have made them voluntary trespassers. McDonald v. Wilkie, 13 Ill., 22. Watson v. Bodell, 14 Mees. & Wels., 57. It would be absurd to say that they were caused to proceed, by an act of which they knew or were bound to know the nullity. If, under all the circumstances, the voluntary act of the selectmen and the act of the defendant are to be regarded as connected, we have only a case of a common purpose between them, the execution of which rendered them yoító-trespassers. West v. Smallwood, 3 Mees. & Wels., 418. But we say that the action of the selectmen, being a voluntary exercise of their own discretion, in which the defendant bore no other part than by a disclosure to them, without recommending any action, of the precise facts relating to the alteration, made the defendant *not a party to the injury of the plaintiff. [ *207 ] A fair statement of a case to a magistrate, who thereupon issues void process, defends the author of the statement against any liability for the execution of such process. Carratt v. Morley, 1 Ad. & El., 18, 27. Cooper v. Warding, 7 id., 928, 939. Hyde v. Cooper, 26 Verm., 552, 8. It can not be said that the act of alteration was actionable per se. Such a doctrine would have made the defendant liable, if no tax had ever been levied or collected. Injury and damage must combine, to give a right of action in such cases. Tancred v. Leyland, 3 Eng. L. & Eq., 487.
    
      Mitchell and E. Johnson, contra.
    1. If in this case any person is liable, it must be the defendant, and the proper remedy against him is an action on the case. This is not a suit against the defendant as an assessor, or for any misconduct whatever in his office of assessor, nor is it a complaint on the ground of an illegal assessment, but it is a charge against him as a private citizen, as an interloper, for an attempt to defraud the plaintiff by unlawfully altering the assessment list, so as to increase the valuation of the property of-the plaintiffs. If the injury was immediate the action would properly be trespass, 'but if it is consequential it must have been case. This is the true distinction. The simple act of altering the rate bill did not, in itself, injure us, but the consequences of that act did, and it is for the consequences of that act that this suit is brought. Most of the cases cited by the counsel for the defendant were of actions against persons for- misconduct in their office as assessors, and consequently have no application to this case.
    2. .Trespass will not lie for an act done under a legal process regularly-issued, or for a malicious wrong though the medium of legal process. Case only will lie, and that only on the ground of malice and want of probable cause. Luddington v. Peck, 2 Conn., 701. Watson v. Watson, 9 id., 141. Prince v. Thomas, 11 id., 472. Boot v. Cooper, 1 T. R., 535. Bennett v. Allcott, 2 id., 166. Belk v. Broadbent, 3 id., 185. Stonehouse v. Elliott, 6 id., 315. 2 Stark. Ev., 810.
    [ *208 j • *3. In some cases, though the injury be forcible and immediate, the plaintiff may waive the trespass and sue in case for the consequential damage, as where a distress is made after a tender of. the rent, when either case -or trespass may be brought; and where there is both an immediate and consequential injury the plaintiff may have his election of the actions. Pitts v. Gaince, 1 Salk., 10. Branscomb v. Bridges, 1 Barn. & Cress., 145. Harker v. Birkbeck, 3 Burr., 1561. Thornton v. Austen, 1 Ld. Raym., 188.
    4. The declaration is sufficient in case, especially if after verdict.-' Judgment is arrested only for intrinsic and substantial cause, and when the statement of the plaintiff’s cause, and that only, is defective, the defect is cured by the verdict. Bedell v. Stevens, 8 Foster, 118. Higgins v. Bogan, 4 Harring., 340.
    5. If the list was not returned to the town clerk’s office within, the time prescribed by statute, and therefore invalid at the time, it was validated by the act of 1855, being within the very letter of that act. But it was by law the duty* of the defendant as assessor to return the list into the town clerk’s office on or before the 15th day of December, 1852, and he can not set up in his defense his own neglect of -duty. He ought not to be allowed ■ to . take - advantage of one error in excuse or defence of apother.
    6. There is no .error in the charge of the court, but it is essentially in conformity rwith • the decision of this court'when the nresent case was before it upon a former motion for a new trial. 27 Conn., 227. ......
   - Ellsworth, J.

The motion in arrest raises two questions of law which have been elaborately argued before us; 1st, does the declaration, on the facts set forth in it, contain a good cause of action ; and 2d, if it does, ought the action to be, in form,.trespass or trespass on the case. Other' less important questions have been made in the case which will receive attention in their place.

The declaration contains two counts, which are essentially the same. They state that the plaintiffs, a manufacturing ^company in the town of Bristol, liable to be taxed [ *209 ] for their property, were put into the assessment list of the town for 1852, at the sum of $41,200, which, at three per cent., (the rate prescribed by law,) made their list and abstract $1,286 ; which list and abstract, after being duly completed and signed by the assessors, was by them returned to and lodged with the clerk of said town, in conformity with and for the purposes specified in the statute for the assessment and collection of taxes —that shortly afterwards, the defendant, intending to have the plaintiffs defrauded, and for the purpose of compelling them to pay a larger sum than by the assessment they would be required to do, maliciously, falsely and fraudulently, and without color of right, altered said fist and abstract from $1,236 to $1,735, increasing the plaintiff’s"tax $39.92—that on this altered list, at a subsequent term, a town tax was laid of eight cents on the dollar —that a warrant was issued for its collection, and placed in the hands of a collector, who after demand and refusal, levied upon the plaintiffs’ property, which however was soon released, by. the plaintiffs paying, under protest, said excess of $39.92. It further appears from the declaration, that said list and abstract were not returned to and lodged with the clerk of said town, until the 24th day of February, 1853.

A majority of us are fully satisfied that there is here a good cause of action—good after verdict certainly, and, we believe, good on demurrer.

The legislature have provided, by the act just referred to, a mode for ascertaining the burthen or proportion every man is to be obliged to bear' by way of public tax. The annual list and abstract is to be lodged with the town clerk by the 15th day of December, that every one may learn at what his estate is assessed,- and how his list compares with the lists of others, and that he may appeal to the board of relief, if he has any desire to do so. Every person whose name is in the list, and liable to be taxed, has therefore a direct and important interest in the list as returned, and that it remain *inviolate [ *210 jj and unaltered, except by the board of relief. It gives the only rule and measure of his taxes, and if it be increased by a stranger or by any one of the assessors after it is returned, it is manifestly a private wrong to the property owner, if not indeed a misdemeanor under the fifty-seventh section of the act with regard to crimes, where it is made a criminal offense to impair, alter or destroy any \\;rit, process, return or other proceeding, in the office of the clerk of a county, town, city, borough or other incorporated society or community. The 118th section of the same statute bears strongly upon the same point.

Is it possible, now, that persons liable to be taxed, and who in fact are taxed, according to this perfected list, have not an important interest in its correctness and inviolability, as much so as they can have in any instruments, writings or records ? If these muniments are any of them fraudulently altered, the act, I repeat, is a wrong in itself, and is most certainly actionable if the alteration is followed by personal injury. May a person with impunity go into the office of the depositary of public records and alter and deface them at his pleasure ? Certainly not. It is a criminal act; and if injurious to those who are interested in the record as it was first made, must render the wrong doer liable to pay adequate damages. I say it is a ivrong, because it is the violation of a right, which is the legal definition of a wrong ;—is per se actionable, for nominal damage certainly, and the statute of limitations commences running from the doing of this illegal act. .If, in addition, the act be followed with actual damages, which are natural and proximate as consequences, they must be made good by the wrong doer, unless we are prepared to abandon the first principles of law and natural justice.

It can not be necessary in this case to go further than to make the defendant liable for the damages of which the plaintiffs complain, provided they be, as' I have said, the natural and proximate. consequences of the defendant’s act, as these undoubtedly are ; but, for myself, I can not doubt that here there has been a violation of right which is attended with some legal damage of course, and that this wrong gives a cause of action at once. In Pasley v. Freeman, 3 T. R., 51, the court decided [ *211 ] an analogous principle, broad enough *in its essential character to sustain this position. They held there that deceit accompanied with damage gives a clear cause of action ; and this is the English and American law at this day. Marshall, Ch. J., in Russell v. Clark's Exr., 7 Cranch, 92, says: “ Indeed, if an act in itself immoral, in its consequences injurious to another, performed for the purpose of effecting that injury, be not cognizable and punishable by our laws, our system of. jurisprudence is more defective than has hitherto been supposed.” In Upton v. Vail, 6 Johns., 181, Kent, Ch. J., alluding to the ease of Pasley v. Freeman, says .'-“That case went not upon any new ground, hut upon the application of a principle of natural justice, long recognized in the law, that fraud or deceit acco.mpanied with damage is a good cause of action. This is as just and permanent a principle as any in our whole jurisprudence.” Ld. Ch. Baron Comyn, the greatest lawyer of his age, says: “ An action on the case for a deceit lies when a man does any deceit to the damage of another.” Comyn Dig., “ Action on case for deceit.” A. 1. In Baily v. Merrell, 3 Bulst., 95, Croke, J., says: “ Fraud without damage or damage without fraud gives no cause of action, but where the two concur, there an action lieth.” The doctrine of the case of Pasley v. Freeman is most elaborately examined in 2 Smith’s Leading Cases, 70, 71, where are to be found, in the text and the notes, the most important cases in the books which have a bearing on this subject. Judge Swift says, in his Digest, (vol. 1, p. 473,) “ A wrong or injury is defined to be a privation or infringement of right.” Judge Story, in Webb v. The Portland Manfg. Co., 3 Sumner, 196, says, after reviewing the cases : “ Upon the whole, without going further into an examination-of the authorities on this subject, my judgment is, that whenever there is a clear violation of a right, it is not necessary in an action of this sort to show actual damages; and if no other be proved, the plaintiff is entitled to a verdict for nominal damages.” In Scott v. Shepherd, 3 Wils., 412, Ld. Ch. J. DeGrey says, in giving the opinion of the court in the celebx-ated squib case : “ The throwing the squib by the defendant was an unlawful act at common law ; the squib had a natux-al *power and tendency to do mischief indiscriminately.” [ *212 J In the px-esent case, the loss and damage to which the plaintiffs have been subjected, wex-e the vex-y consequences contemplated and intended by the defendant, and not only intended, but they wex-e the natural, and, we had almost said, the unavoidable consequences.

We may as well consider here as any where, w-hat we are to understand by consequential damages; when are they so related to the cause to which they are ascx-ibed, as to be, in a legal view, truly ascribable to it, flowing from it, and px-oximate to it. Evex-y judge will agree, that all damages must be th'e result of the injury complained of, whether it consist in the withholding of a legal right or the breach of a duty legally owed to the plaintiff. If they necessarily result, such as the loss of the value of an article of property which is carried away or destroyed, or of a sum of money which is not paid to the plaintiff according to the contract,' or the loss of time and the endurance of pain consequent upon' having one’s limb fractured, they are called general damages.and may be shown under the ad damnum or general allegation of damage, for the .defendant does not need notice of such consequences for his defense ; he knows that they rimst'exist of course, and that they are proximate, and will’be in evidence on the trial. But if certain injuries and losses do not necessarily result from tlie defendant’s wrongful act, but in fact follow it as a natural and proximate consequence, they.are called special, and must be specially alleged, that the defendant may have notice and be prepared to go into the inquiry. The liability of the defendant is the same in both cases, and for the same reason. As an illustration :—the loss of one’s business, the loss sustained by slanderous words not actionable per se, the loss of one’s place as a servant or agent, the loss of marriage and the like, are special losses and can not be proved unless specially alleged; but if they are alleged, and proved to be caused by the defendant’s wrong, they are natural enough and proximate enough to be included in the term consequential damages.. The question may be answered by another illustration. [ *218 ] In' all cases the litigant *parties must be confined to • the principal transaction . complained of and ' to its attendant circumstances and natural results. These results include all the damage to the plaintiff of which the injurious act of the defendant was the efficient cause, though in point of time such damage did not occur until sometime after the act done. Damages are often recovered down to the time of trial, and even after, if the jury are satisfied from the nature of the wrong proved upon the defendant', that the consequences are likely to follow in the natural course of things. The rule itself probably is more easy to be apprehended than in all cases to be applied; but it is a sound rule of law, and it can be correctly applied by the exercise of proper judgment and discrimination. Speculative and possible losses, such as specific profits in business, do not fall within the rule, for they are too contingent and remote. Many such losses are mentioned by way of illustration, in Sedgwick on Damages, page 68, and onward, to which work I will refer rather than spend more timé on this interesting point.

It was said on the argument, that the damage sustained by the plaintiffs w'as not the natural and proximate consequence of the defendant’s act, inasmuch as, before the collector levied on the property of the' plaintiffs, the defendant stated to the selectmen the facts in the.case, and did not himself thereafter positively direct the collector to proceed. But he took no steps to 'forbid him, and left in his hands uncanceled and unaltered the false list and the magistrate’s warrant, with full knowledge what would be the consequence of his not interfering. And what particular facts he stated to the selectmen, to enlighten them upon the proper course to be taken under the circumstances, it does not appear. The jury found that he did not prove the facts set up in his notice, or he would have been found not guilty by them under the charge of the court. But, be this as it may, the plaintiffs were not present at that interview, and can not be affected by it, provided the injury of which they complain is the natural and proximate consequence of the defendant’s act, which we think we have already shown.

*We will next inquire whether the plaintiffs have, [ *214 ] in seeking redress, adopted the proper form of action. It is claimed that the action should have been trespass, if anything, and not case. Greenleaf, in the second volume of his Treatise on Evidence, section 224, lays down the rule thus : “ The distinction between the actions of trespass ui el armis and trespass on the case is clear, though sometimes refined and subtle. By the former, redress is sought for an injury accompanied with actual force. The criterion of trespass vi el armis is force directly applied, or vis próxima. If the proximate cause of the injury is but a continuation of the original force, or vis impressa, the effect is immediate, and the appropriate remedy is trespass vi et armis. But if the original force or vis impressa has ceased to act before the injury commenced, the effect is mediate, and the appropriate remedy is trespass on the case. Thus, if a log thrown over a fence were to fall on a person in the street, he might sue in trespass, but if, after it had fallen on the ground, it caused him to stumble and fall, the remedy could be only by trespass on the case. The intent of the wrong doer is not material to the form of the action ; neither is it generally important whether the original act was or was not legal.” Blackstone, in the third volume of his Commentaries, page 208, lays down the rule in -the same way and nearly in the same words. So did this court in Gates v. Miles, 3 Conn., 70, 71. But I need not further particularize, for the rule is the same in all the books, though its application is not always equally clear and certain. It was much discussed in Leame v. Bray, 3 East., 598, and more fully in Scott v. Shepherd, where the defendant threw a lighted squib into a market house, which, after passing from one to another, each repelling it in self-defense by giving it a new direction, struck the plaintiff and put out his eye. The court held, by a divided opinion, that trespass was the proper form of action and not case, because they held that the injury was done by a continuation of the first force, and so was immediate, and was not remotely the consequence of that force; or, in other words, that the defendant directly threw the squib into the plaintiff’s eye, as it were, without any intervening [ *215 ] diversion. Lord Ch. J. De Grey in that case remarked that the criterion was, whether the plaintiff received an injury by force from the defendant; that if the injurious act of the defendant was the immediate result' of the force originally applied by the defendant, and the plaintiff was injured by it, it was the subject of an action of trespass vi et armis, by all the cases both ancient and modern. This remark of Lord Oh. J. De Grey was afterwards approved by Lord Ellenborough in Leame v. Bray, before referred to.

Now let us apply this doctrine to the case in hand. Did the alteration of the plaintiffs’ list, and the levy on their goods, result from the same identical force, uninterrupted and unspent ? Were the acts the same ? or even parts of the same transaction ? or were they not different and distinct, depending on other forces, if I may so express myself, and on the determination and acts of other persons—first this defendant, then the selectmen, and then the magistrate who issued the warrant? We think the latter. Suppose for a moment, the plaintiffs, not knowing of any thing wrong, had been called upon to pay and had paid their tax, including the excess, without a levy; would they not have had a cause of action against the defendant, though there was no trespass or force at all? We think they would ; and if so, it must have been in the present form of action, not in assumpsit, for the defendant had not and never had in his hands money belonging to the plaintiff's. Besides, as to any forcible act of the defendant to rest an action of trespass upon, there is no reason to believe that, when he altered the plaintiffs’ list, he anticipated any violent action towards them by any officer of the law. It is much more probable that he expected that the tax would be paid without objection.

And even if the defendant may be treated as a direct party to the levy, it by no means follows that the plaintiff's may not, at their option, go for the alteration of their list and the consequent damages, rather than for the trespass, or the levy.

Not that we would intimate that there is not any longer a clear distinction between the turn forms of .action, trespass and trespass on the case, or that in the former the force [ *216 ] may *always be waived and the latter brought for the damage. But we know there are numerous cases where an election between these remedies is given, and where the trespass may be waived; and perhaps this case, were the inquiry important, might be found to be one of them. In some of these states the distinction itself, between trespass and case, no longer exists for any purpose; as in Maine and New York, where it is done away by statute; and to some extent in Connecticut, where we allow of both forms of action in the declaration, provided the cause of action is the same. But, passing over this consideration, there are cases where the plaintiff has his election to bring trespass or trover, (which is but an action on the case,) or assumpsit, where money has been received; in all which, cases there is a forcible trespass, but in the two last of which it is waived, and the right to recover is placed on an independent ground.

Professor Greenleaf, in the second volume of his Treatise on Evidence, section 226, uses this language: “In this last case Lord Denman, Ch. J., proceeded upon the general ground, that though the taking of the goods was a trespass, the owner was at liberty to waive it and bring case for the consequential injury arising from the unlawful detention. Indeed, it is difficult to discern any reason why the party may not in all cases waive his claim to vindictive damages and proceed in case for only those actually sustained, or why he may not as well waive his claim for a part of the injury, and go for the residue, as to forgive the whole.

In Blin v. Campbell, 14 Johns., 432, the plaintiff sued in case, and it appeared that the defendant, being a trooper, had wounded the plaintiff in the leg by negligently firing a pistol. The court held that if the injury was attributable to negligence, though it were immedia-t.e, the party injured had his election, either to treat the negligence of the defendant as the cause of action and declare in case, or to consider the act itself as the injury and to declare in trespass. The same is laid down in 1 Chitty on Pleading, 127, and the authorities there cited sustain the position. The same is decided in Rogers v. Imbleton, 5 Bos. & Pul., 117. Turner v. Hawkins, 1 Bos. & *Pul., 472, Moreton v. Hardern, 4 Barn. & Cress., [ *217 ] 223, M’Allister v. Hammond, 6 Cow., 342, and in Williams v. Holland, 10 Bing., 112. In the last case the judges declare that any cases, such as Leame v. Bray, supposed to be to the contrary, are not inconsistent with their views, or, if they are, are not good law. This class of cases distinctly decides, that the wrongful act of the defendant may be attributed to negligence, and the plaintiff may overlook the direct force. So in cases of seduction, the father or master may sue in trespass with a per quod, or in case for the loss of service. We will not pursue the subject further.

There was a great array of authorities on the argument, chiefly from Massachusetts, to show that where force has been used under process which turns out to he void, the action should be trespass for the forcible act. But it should be remembered that in Massachusetts the assessors of taxes' are virtually the collectors of taxes, and if they proceed without authority, they are of course the immediate actors, and may he treated as trespassers; but here, the act of the defendant is a previous independent act, not necessarily leading to any forcible injury whatever, and it iriajfj it appears to me, be held to be a ground of action without contradicting the Massachúsetts cases, and especially if the gist of the action is the consequential damages. The case is no stronger certainly, and I think less strong, than those already cited, of direct injury to the person or property, by immediate force resulting from negligence and carelessness. Besides, does it appear from the evidence recited in this motion, that the defendant can certainly be made liable in an action of trespass ? He did not commit the trespass in fact, either alone or in company with others. He denies all participation in it and liability for it, though he can not deny that his wrongful act in altering the tax list has. led, and most naturally led, to the injury complained of. How far he would stand exculpated, were he sued by the selectmen for having involved them in a trespass, we have no occasion to decide, though the finding of the jury, under the charge of the court, would seem to leave him to be held the [ *218 ] sole and ^culpable cause of the injury. In some form of action, however pure his motives, he ought to be made liable, if any one is to be ; and we know of no more proper form of action to accomplish this than the one which has been adopted.

Nor is it universally true, that for forcible injury under a process -which proves to be void, trespass is the only form of action. In Goslin v. Wilcock, 2 Wils., 302, the court decided that case lies for sneing the plaintiff in an inferior court maliciously, and arresting him, when that court had no jurisdiction of the cause. Lord Camden said, page 307, “ YVe are all of opinion, that if you hold a man to bail in an inferior court, when you know it hath not jurisdiction and with malice, an action upon the case will lie.”

The remaining question is, whether the defendant can shield himself from paying damages, the'damages actually suffered, because he and his brother assessors- were tardy in returning the tax list to the town clerk’s office. It should' have been done by the 15th day of December, but it was not done until the 24th day of February following. The bare statement of the case seems to me to furnish the answer, without the necessity of saying more. But there is more. The legislature, long before the tax in question was laid, interposed and validated this list against this very objection, and no question-is made or can be made that the legislature had not full power to do this. But it is said that the act of the defendant was before the passing of the confirming act of the legislature, and therefore, whatever the returned list might be held to be after the confirmation, until then it was mere waste paper, lying on the town clerk’s table, which any one might deface, tear, or tamper with in any way with impunity. To a majority of us this excuse appears alike unsatisfactory and untenable. The delay to lodge the list with the clerk was the defendant’s own wrong. He had sworn that he would have it completed, signed and returned in season. He must be held to this, and his neglect can not be urged by him as a license to tamper with it, after it was returned, signed and complete, any more than if it had been returned by the 15th day of December. He may not add wrong to wrong, to ^shield himself from an act grossly improper, illegal [ *219 J and criminal; and more especially, as the list was the same thing essentially, and the alteration of it followed by the same consequences or injuries, as if there had been no delay in the return of it. If the default of the assessors does them no hurt, it ought certainly to do them no good. The delay neither caused nor aggravated the injury, and it would be a reproach to the law, if the defendant should be allowed to escape thereby from a just responsibility.

Nor is it proper to allow the defendant to set up in his defence the fact that the plaintiffs might have resisted the collection of the tax if they had been disposed, and, in not having done so, are to be regarded as having paid their money voluntarily, and so as having no right to complain. The assessors returned the list as a true and perfect one, and the plaintiffs had a right to regard it as being so, and in all respects conformable to law, and thereupon to pay their tax accordingly. As well might the slanderer, when sued by some servant for having falsely and maliciously caused him to be deprived of his employment, set up that the contract for service was technically defective. In Benton v. Pratt, 2 Wend., 385, the court refused to allow a similar' objection when urged by a tortious conspirator.

And besides this, a majority of the judges agree with the judge below, that the confirming act of 1855 takes away all objection to the list as being returned too late, and that there is no force in the objection to the retrospective character of the -act. For these reasons we do not advise a new trial.

In this opinion Hinman and Sanford, Js., concurred. Storrs, C. J., dissented.

Motion in arrest to be overruled.

New trial not to be granted. 
      
       A dissenting opinion which the .Chief Justice proposes to write, will be inserted at the close of the volume if received in season for that purpose.—It.
     