
    Moses Holden versus William Eaton
    Where no return had been made to the clerk of the District Court, of a sale of luna for the United Slates direct tax of 1815, to enable him to give a deed to the pur chaser, it was held, that in order to maintain an action by the purchaser against tile collector for not causing such a return to be made, by means of which neglect the plaintiff lost the title and possession of the land, it was necessary for the plaintiff to prove that the tax was granted by Congress, that it was duly assessed, and that ail the proceedings necessary to give validity to#the sale, except those which it was the duty of the defendant to perform, were legally had, so that it should appear that the plaintiff’s losing the land was owing to the defendant’s neglect. Proof that the defendant was collector, and that the person who made the sale was his deputy, and that the defendant had received from another person who acted as principal assessor, a list of the taxes in his district, will not throw on the defend ant the burden of proving that the-tax was not legally assessed.
    This was an action on the case against the defendant, as a collector of the direct tax of the United States under the act of Congress of January 9, 1815, for the misconduct of his deputy, Learned Davis.
    The declaration alleged, that a direct tax was duly granted by the act of Congress passed January 9, 1815, and that the same was duly assessed, and that on January 28, 1819, Davis sold to the plaintiff certain parcels of land, the owners of which had neglected to pay the taxes due thereon ; that no part of the land was redeemed within two years from the time of the sale'; [the period for redemption allowed by the statute ;] that at the expiration of three months from that period, neither the defendant, nor any other officer in his collection district, lodged with the clerk of the District Court any statement relative to the lands sold and unredeemed, so that the clerk might give a deed of the same ; but that the defendant still neglected and refused to make or cause to be made and lodged with the cleik the returns required by the act of Congress, by reason of which the nlaintiff had lost the title and nossession of the land which he had purchased.
    A new trial having been granted, (see Holden v. Eaton, 7 Pick. 15,) the case was again tried, before Putnam J.
    It was admitted that the defendant was collector, and that Davis was his deputy, and that the defendant, on January 3, 1816, had advertised in the National iEgis, that the direct tax had become due, and that he, and his deputies named in the advertisement, would attend to receiving it at the days and places specified ; and that the lands were advertised by Davis for sale on January 28, 1819 ; and it was proved that the lands were sold on that day to the plaintiff, as alleged in the declaration.
    It was also admitted, that no return relative to the land sold and unredeemed, was ever made to the District Clerk’s office.
    To prove that Nathan Fisher was principal assessor of the defendant’s collection district, the plaintiff offered the following receipt, signed by the defendant; “ Received this first day of January, A. D. 1816, from Nathan Fisher, principal assessor for the 16th district for the State of Massachusetts, a list of taxes payable on lands, lots, dwellinghouses, under the act of Congress of January 9, 1815, by persons residing within the same, amounting to fifty-eight thousand nine hundred and twenty dollars. William Eaton, collector for the 16th district for the State of Massachusetts.”
    The plaintiff offered no other evidence that Fisher was principal assessor; and this was objected to by the defendant as insufficient.
    The plaintiff called Jabez Fisher, who testified that certain books and papers which were produced, were kept by his father, Nathan Fisher, since deceased. The books and papers were then admitted in evidence, though objected to by the defendant. The books purported to be “ general lists of lands, dwellinghouses, and improvements, subject to the United States direct tax within the assessment district composed of,” &c.; also a “ list of taxes payable under the acts of Congress of 18th January and 3d March, 1815, on lands, lots, dwelling-houses, and slaves within the county of Worcester in the State of Massachusetts, by persons residing within the same.”
    The papers purported to be descriptive lists of the property liable to be taxed ; but it did not appear by whom the lists were made.
    Here the plaintiff rested his case. The defendant objected that he was not entitled to recover, because no evidence was offered by him to prove certain facts, enumerating thirty-one, each of which he insisted was essential to the validity of the tax. The following are given to show their character.
    
      
      Sept. 29th.
    
    I. That the principal assessor divided his district into a con venient number of assessment districts.
    4. That the secretary of the treasury established regulations for, and gave instructions to, the principal assessors, relative to the assessment of the tax.
    II. That the principal assessor, or some assistant assessor, called on all persons liable to be taxed for lands, &c. to exhibit a written list of their property liable to be taxed, and to disclose the particulars thereof to such assessor, or that any such lists were made.
    19. That the principal assessors of the several collection districts in the State did convene and form a “ board of principal assessors,” at a time and place for that purpose fixed by the .secretary of the treasury.
    26. That the board of principal assessors apportioned to each district its proper quota of the tax.
    On these thirty-one objections of the defendant, the judge directed a nonsuit; which was to stand, unless the whole Court should be of opinion that the plaintiff had shown sufficient to support his action ; in which case a new trial was to be granted.
    
      Newton, for the plaintiff,
    contended that the evidence given at the trial was sufficient to support the action, and throw the burden of proof on the defendant, if he disputed the legality of the assessment of the tax. The receipt of the defendant and his advertisement were sufficient proof that Fisher was defacto principal assessor, which is all that the plaintiff was bound to prove. Rex v. Verelst, 3 Campb. 432. The plaintiff had a right to suppose, from the acts of the defendant, that the sale of the land would convey a good title ; if the assessment was in fact illegal, the plaintiff, who was deceived and injured by the defendant’s representations, ought not to suffer, but the defendant. Stark. Ev. 28, 31, 32.
    
      Merrick, for the defendant.
    The plaintiff was bound to al lege, and consequently to prove, that the tax was duly assessed. This he has not done. In order to support his action, he must prove that he lost the land in consequence of the defendant’s neglect; but even if the defendant had done every thing required of him, it would have been of no avail, if the tax was not legal. Albee v. Ward, 8 Mass. R. 79; 3 Stark. Ev. 1340 et seq.; Colman v. Anderson, 10 Mass. R. 105; Stetson v. Kempton, 13 Mass. R. 272; Bland v. Smith, 1 Holt, 589. If the tax was not legal, the plaintiff has lost nothing by the defendant’s neglect.
    
      Oct. 5th.
    
   Parker C. J.

delivered the opinion of the Court. The plaintiff avers in his declaration, that the tax was duly granted by an act of Congress, and was duly assessed. .Upon the trial he did not show the legality of the assessment, relying upon certain acts of the defendant, viz. advertising the land for sale, and his declaration in the advertisements, and his' receipt of the lists, in which he recognised Fisher as the principal assessor ; and he insisted that the burden of proof was on the defendant to show illegality in the proceedings, in order to avoid the effect of negligence in his duty, as to making return to the district clerk. There is in the report an enumeration of all the matters and things supposed by the defendant to be essential to the validity of the tax, and which he contends, it was incumbent on the plaintiff to prove, in order to sustain his action. The only evidence offered by the plaintiff was the receipt signed by the defendant as collector, which is stated in the report ; and the books of the principal assessor produced by his son, he being dead. It seems to have been admitted, that proof was necessary of many, if not all, of the points enumerated by the defendant in his objections to the sufficiency of the evidence, and the case has been argued before us solely on the question, whether the burden of proof was on the plaintiff or the defendant.

We have no doubt that it was necessary for the plaintiff to show that the tax was granted by Congress, and that it was duly assessed, and that all the proceedings, except those which fell within the duty of the defendant, were legally had ; because the gravamen of his writ is, that by the omission or negligence of the defendant, he was deprived of a title to land which otherwise he would have enjoyed.

And this ground seems-to be admitted by the plaintiff’s counsel ; but he insists that he had shown enough to shift the burden of proof upon the defendant, by the receipt before mentioned, and by the books of Nathan Fisher, purporting to 3e kept by him as principal assessor. We think he has failed to maintain this position; he ought to have proved affirmatively on his part, so much as was essential to the validity of the sale by auction, except what the collector was bound to do himself. The officer does not warrant, nor is he responsible, for the prior proceedings. It is analogous to a sheriff’s sale of goods under our laws. The sheriff is not answerable for any defect of. title in the purchaser, which was not occasioned by himself, unless he should bind himself further by covenants. If he should be sued by a purchaser, for a loss of the goods sold, it must be proved chat the execution came regularly into his hands, and that the loss was owing to some negligence or omission of his own.

In this case many defects are supposed to exist, fatal to the plaintiff’s title, even if the collector had done what he is charged with having omitted to do; and if these defects actually exist, the plaintiff would have gained nothing as to his title under the purchase, had the collector made the return to the district clerk; so that no loss is imputable to the defendant.

Nonsuit made absolute  