
    Hugh Henry vs. Ptolemy Edson, et al.
    
    Windham,
    February, 1830.
    That listers are liable to an action on the case for setting the property of the plaintiff in the list against him in the town where he does not live, and where the property is not liable to be putin list; the plaintiff having been compelled to pay taxes in consequence of such enlistment.
    That case is the proper action, and not trespass.
    
    This was an action on the case, against tbe defendant's, complaining of their proceedings as listers of tbe town of Chester, in 1823. The first count of the declaration set forth, that theplain-tifF was not an inhabitant of said Chester, and .had no property there liable to be taxed, other than what, he had given into the list; that the defendants, well knowing the premises, under color oflaw,set other property to him in the list,stating what,&c.; and, that sundry taxes had been assessed upon the list, by the defendants returned’tojthe town clerk,rate-bills made ou,t,and warrants,which had been delivered to the collectors, who, by virtue thereof, had imprisoned tbe plaintiff a long time, to wit, five hours, until he paid said taxes, amounting in the whole to the sum of --dollars. The several taxes were particularly stated.
    The second count stated,that the defendants,not regarding their duty, but contriving to cause money to be extorted from the plaintiff, under color of law, and to cause him to be unreasonably vexed, harrassed, arrested and imprisoned,, did illegally, arbitrarily, and without any probable cause, cause plaintiff to be set in the list at $2978 when he was not liable to be taxed for the same property in Chester j all which the defendants well knew. It then stated the taxes,&c., as.in the first count.
    There was a third count upon which no testimony was given.
    At the trial in the county court on-the general issue, the plaintiff proved he was arrested and detained by Alexander Lcland, collector of taxes in the town of Chester, on the warrants and rate-bills, until he paid tbe taxes and costs mentioned in tbe two first counts in his declaration j but gave no evidence on the third count.' The plaintiff also adduced evidence lending to prove the other facts-mentioned in the two first counts; and the defendants gave evidence tending to disprove the same.
    The counsel for the defendants insisted they were not liable to any action for an error in making up the grand list, unless express malice was proved ; and they requested the court to charge the jury accordingly. The counsel also insisted, that if any action would lie, trespass was the proper remedy. The court refused to charge as requested,but did charge the jury,that the action on the case was the proper remedy, and that the defendants were liable in this form of action for manifest errors in making,, up the grand list; that it was not necessary for the plaintiff to prove express malice to entitle him to recover, but that the defendants would not be liable ifthey had good reason to believe,at the time they made the list, that the plaintiff did not intend permanently to change his residence, and acted with reasonable discretion and impartiality.
    The jury w.ere not instructed that it was necessary for the plaintiff to prove want of probable cause, nor was the court so requested to instruct them. A verdict was returned for the plaintiff. The defeñdants excepted, &cc„ and also filed a motion in arrest of judgement, which was overruled by the court; and on motion of the defendants the whole cause was ordered to the Supreme Court for their revision,
    
      The defendants'1 counsel contended, 1. That the office of list-ers is judicial, and that no action will lie against them for any error in judgment in making up the list. They are obliged to decide upon questions of fact and law. The residence, the age, the exemptions, the equipments, Stc. are to be ascertained and adjudged of by the listers. There maybe strong cases, and there may be those that are doubtful. The person enlisted may have resided long in town,or he may have recently removed from town, or pretended to .remove, as in this case or, he may never have resided there, and yet have property there.
    It is no objection,that the parties are not heard or,witnesses sworn. It is a proceeding under a law that does not require it, and their proceedings must be ex parte. Again, if the listers are liable for listing a person who ought not to be enlisted, they are liable also for omissions to every person in town whose taxes are increased by such omissions. In this case, the listers were under the necessity of determining both the question of residence and the question of property. No authorities are necessary to show that judicial officers are not liable for any of their judicial acts, and none can be expected out of this state, applying the principle in terms to listers. But the following are analogous. — Beach and Saunders vs. Fire-men, 9 John. Rep. 229 — and Freeman vs. Crunch, 10 John. Rep. 270. — JY. Y. Stat. vol. 1 ,p. 588, Highway Act. — See also, Harmon vs. Tappan etal., 1 East. 555, & note onp. 556. — Jenhins et al.vs. Waldron, 11 John. Rep. 114. ■ — Wheeler vs. Patterson, 1 JY. H. Rep. 88.
    The party is not without his remedy, sometimes by appeal, and sometimes by certiorari. The consequences to the defendants are worthy of consideration. The plaintiff complains, that, in consequence of defendants’ conduct, he has been compelled to pay money to the town ; and now asks to recover it of the defendants. But the defendants would have no remedy. If any action can bt? maintained,it should be for money had and received against the town.
    
      2. That malice express and the want of probable cause must be charged and proved, or the plaintiff cannot recover. This is not alleged in the first count; and the charge of the court made it unnecessary to be proved in the second count. The listers are public officers under oath and bound to act, and cannot be liable to an action when they act without malice.
    3. That the action should have been trespass and not case. The injury complained of was immediate and direct: that plaintiff was arrested, imprisoned, and compelled to pay money. No injury resulted from the mere act of jnaking the list. It resulted from the arr.est and imprisonment: — 6 Term. Rep. 648, Day vs. Edwards. — 11 Mass. Rep. 220, Agry vs. Young et al. — Frederic Ware vs. The Assessors in Pomfret, Windsor Co. — Alexander vs. Wilmarih, in Windham Co.
    
    
      The Plaintiff 3s counsel in reply. — The first count admits that the plaintiff was liable to be listed for certain property owned by him in Chester ; but alleges, and the jury must have found, that the defendants set in Lis list property, which he was not liable to have enlisted in that town. They assessed him for money due on interest; and that must jbe in’the town where he lives. He has a right to a hearing upon that subject.
    The objections presented by the case are, lf That defendants are not liable for any error in making up the grand list. 2. That, ifliable, the action should be trespass and not case. 3. That, if case is the remedy, they are not liable unless express malice is proved.
    As to the first point,it is believed to need no argument,that in free governments there are no inferior officers,judicial or ministerial,but what are liable for some errors; and, if listers can insert persons' an^ property without limit, there would be an enormous • injury a remedy. When, therefore, an injury is done, there must be a remedy against somebody. — 10 Co, 76. — LI Mass. 350. — 13 Id. 282. — 5 Id. 558. If, therefore, a-person is listed in a case where by law he ought not to be,, the remedy must be against the listers; for, the wrong was caused by them, and they derive a profit from it, (Stat. 391, s. 12,) and can, in cases of the present kind, be brought against no one else. It cannot be brought against selectmen or collector, if the tax is legally granted. Not against selectmen, because they are bound- to make the rates upon the lists returned. — (Stat. p. 400, s.. 2, p. 414, s; 14.) Nor against collector, who-is justified by his warrant.— (Stat. 406, s. 10.) So that- the party would be- remediless, there being no appeal.
    As to the second point, the injury is consequential; which is-the true destinction.- — 2 JY. R. 44-7, in notes. The making of the list does not necessarily imply a collection. No tax- may be raised for that year. The listers neither raise, assess, nor order it to be' collected. They are concerned in no act, which operates directly. on the party. They merely furnish a rule by their list and valuation, which being erroneous operates a consequential injury. It is no objection to this, that in England and Massachusetts the action has been trespass; for there, the- commissioners and assessors not only-make the list or valuation, but they also make the rate or tax bill and warrant. So that the whole injury comesi directly from them. — 1 White's Rig. 126-127. But, if trespass is maintainable there for other causes than the illegality of the tax, and especially for erroneous valuation, it- is good authority for bringing case here. To shew that such is the case, the plaintiff refers to 3 Mass. 419. — Id. 277, & 5 Mass. 558, S. C. — 3 Id. 429.-8 Mass. 93. — 10 Mass. 119. — Hi. Black. 68.-2 T. R. 374.-4 T. R. 2. — Id. 4.-8 T. R. 468. — 13 Johns. 444. '■ — Swift's Ev. appendix, 359.
    As to the third point, the objection is, that the judge would not charge that express malice was necessary to be proved. But, even in cases where malice is necessary, it is not required that it should be express. — Drew vs. Coulton, 1 East. 564, n. In that' case implied malice would have been deemed sufficient.
    But, in the present case, it was not necessary to be proved. The declaration charges that the plaintiff was not an inhabitant of Chester, and his property not liable; and so it was found by the jury. , The listers had no jurisdiction of the subject matter. Lis-ters are to put up a warning for inhabitants of towns to bring a list of property possessed by them on a given day. — Stat. 390,s. 9. 
      Property in possession of tenants is to be put to the list oftenant, with the name of the owner,and the property holden.-Staf.p. 388,s.4,p. 393, no. 4. Lands are tobe putin the list of towns where they lie. — p. 396, s. 4. For studs and jackasses owned out of town, there is a special provision. — p. 388, s. 3. All other property to be put in the list of owner.-p. 393, no. 4. From these clauses it results,that personal property in possession of the owner,and not of the tenant,must be put in the list of owner in the town where he inhabits; so that listers could have no jurisdiction of property of an inhabitant of another town possessed by him. If it were otherwise,and property were to be put in the list of the town where it happened to be, still it would not help the defendants: for the case finds that the property was not liable unless in consequence of habitancy. It was also found that he was not an inhabitant. So that, in this view, the poll and property (being the subject matter) was not within the jurisdiction of the listers.
    But if malice was necessary tobe proved, it was so proved, as appears by the verdict: for implied malice was sufficient, ut supra. The declaration charges that it was done, intending to injure, without just or reasonable cause, and under color of law. — 1 East, 564. And the defendants knew he was not liable. So too,’the judge charged the jury, that if defendants had even reason to believe him an inhabitant who intended to return ; that, if they exercised reasonable discretion; that, if they were impartial, the defendants were entitled to a verdict. If the court think it necessary to examine the cases of malice, the plaintiff refers to 2 Mass. 243, compared with 11 Mass. 353, he. — 10 Id. 118,' 119. — 5 Id. 558.
    The motion in arrest presents no other questions than those contained in the exceptions.
   The opinion of the Court was pronounced by

Hutchinson, J.

This cause has been argued upon the exceptions, taken and allowed in the county court; also upon a motion in arrest, there overruled. Both centre in one general question, whether this action can be maintained under all its circumstances. And the charge of the court in reference to the kind of action, and the point of malice, present the same questions as the motion in arrest.

We are led to consider the duty and liability of listers, so far as now called in question. It is their duty to collect the lists of the ratable inhabitants, and put the same into one grand list, including all the polls of persons residing in town, liable to be rated ; and all the property for which rates are to be paid. They are to make assessments of mechanics and professional men, millers, merchants, &c. and add such assessment to the list. When they have completed the grand list, they are to return it to the town clerk, and there it remains to be used in making up all rate bills for the year. In all cases- of discretionary assessments,-an appeal is given by the statute'to the selectmen and civil authority. With regard to the list upon' items of property in general, it must stand as the listers place it,- and be a guide for the select-men in the year’s taxation. They are not obliged to proceed till they are in difficulty, in doubtful casesand very few cases arise about the ownership of property to embarrass the listers. In the discretionary assessments their proceedings are in a measure judicial; and the remedy for any error in their judgement, is by appeal as before mentioned.

If they enlist a man who is not liable to enlistment in that town, or put into the list property clearly not taxable,- they do- it upon their own responsibility,- and ate liable for the injury any person may sustain by it. And, in such a case, there need be no allegation, nor proof, of malice, nor want of probable cause. It isa wrongful act, and they, who do it, must bear the consequence. The person injured must not be left without remedy. The cases, in which malice and the want of probable cause must be shown, are of a different character. They are cases where legal process is used, which repels all presumption of wrong, and is itself a shield to those who use it, till malice and the want of probable cause are shown.

With regard to the residence of the plaintiff, it appears, that he had lately removed from Chester to Rockingham; and the lis-ters chose to treat him as being still an inhabitant of Chester.— The verdict of the Jury has settled that question. The charge of the court was very favorable to the defendants upon this point. The charge was, that the defendants would not be liable, if they, at the time they made the list, acted with reasonable discretion and impartiality, and had good reason to believe, that the plaintiff did not intend to permanently change his residence. Had the verdict been in favor of the defendants, the plaintiff might, with some plausibility, have excepted to this charge. But a verdict for the plaintiff, after this charge, fully establishes the plaintiff’s residence in Rockingham. This settles the point, that he was not liable to be enlisted as of Chester. He was obliged, by law, to give in his list in Rockingham; and, if he neglected it, was liable to be twofolded there.

If the defendants have done that, as listers, which renders them liable to the plaintiff, are they liable to this action of the case, or should the action be trespass ?

There is no reason, in this state, for any distinction between the two actions ; yet it is ob^pavedyis it comes to us in the books’; and we must treat it as a part of the law» Yet, in a case where the distinction is but a doubtful shade, I would not drive.the party* round to another a'ction.

The legal distinction leads to this inquiry, merely: was the in* jury complained of direct and immediate, or only consequential? if the former, the action should be trespass : If the latter, this ac* tion is correctly brought-.

If A roll a rock into the highway, and it injures B, by striking him or his property, B has his action against A to recover his damages ; but it must be an action of trespass, for the injury is direct; and it makes no difference whether the rock hits B, at the first bound, or bounds fifty times before it hits. But, if A roll the rock into the same, place when B is not there, and B afterwards passes, and sustains such an injury from this rock, that any action will lie against A, it must be an action on the case ; because the injury is not direct, but consequential.

The defendants have cited the case' of Frederic Ware vs. Smith and Conant, once decided in Windsor county. There’ ■Smith and Conant were not the listers to make out the grand list, but the committee who made up a rate bill for a society tax, to pay their minister, and procured a warrant for its collection, and delivered both to the collector, who took the plaintiff’s property» The plaintiff brought his action <jf trespass against Smith and Co-nant, and he recovered, because he was not liable to the tax, not being a member of the society ; and Smith and 'Conant, by putting his name into the rate bill and attaching the warrant, did the first wrongful act, and made it the duty of the collector to do what his precept commanded. The doings of Smith and Conant acted directly upon Ware, and the collector, coming in to aid the motion of the injurious weapons they aimed at Ware, did not change the nature of their liability. They might well be said to have com* mitted the trespass which they caused the collector to commit upon Ware.

The defendants cite also the case oí Alexander vs. Wilmarth, in this county-: Wilmarth, acting as a justice of the peace, had issued an execution against Alexander, by which he had be’eti pursued in his person, or property. He brought his action, relying upon showing Wilmarth not to be in office at the time he issued the execution: It was decided that trespass was the proper action. Though the officer went with the execution, vet Wihnarth gave the impetus which kept it moving, till it hit Alexander, as ho complained. The plaintiffs action failed, however, in that case, it appearing that Wilmarth was in office at the time.

. If, in the case before us, the selectmen, who made out the rata bills, and procured the warrants, had done the wrong so as to be liable at all to the plaintiff, the action against them must have been trespass. Their wrong proceedings wbuld have acted, through the agency of the collector, directly upon the plaintiff, and occasioned the iujury of which he complains. And the tendency of this wrong to the injury of the plaintiff'would have been of no uncertain character. It would have made the duty of the collector imperative ; and that, if performed, must have injured the plaintiff. But, as it was, the selectmen had a plain duty to perform. When the treasurer’s warrant was presented, and the town had voted their regular taxes, the selectmen would have been culpable, not to have made out rate bills for the state and town and school taxes, and delivered the same to the collector for collection ; and they must have made them on such a grand list as the listers had returned to the Town Clerk. If any of the persons enlisted had moved out of town, the selectmen could have taken no notice of that. Everyman must be listed in the town where be lives at the time of taking the list, and must pay the taxes assessed upon that list, let him live where he may. The listers, then, have done all the wrong. They have made it the duty of the selectmen to do just as they have done 3 that made it the duty of the collector to do as he has done : and the result is, that the plaintiff has been compelled to pay a large sum of money, and this compulsion all originated in the wrongful proceedings of the defendants. Still, the question remains, was the injury to the plaintiff immediate and direct, or merely consequential ?

While the rock lay in the highway, in the case above stated, it was at rest and could hurt no persons, till they should come along, and it was not certain they ever would come. But, when B came and was injured, case was the proper remedy against the person who placed the rock there. So, when the defendants had made out the grand list, and put the plaintiff into the same wrongfully", and lodged the same with the town clerk, it rested there, and would injure no persons, till they should come where it was, and it should be used in making up rate-bills, it was not certain that any persons would thus come along 3 that any rate-bills would be made from it. And when taxes were laid, and it became the duty of the selectmen- to make out rate-bills, the indirect, consequence of the defendants’ listing the plaintiff, was, that it occasioned the selectmen and collector, with perfect, innocence on their part, to inflict an injury upon the plaintiff Even if the selectmen and collector were bound to notice who lived in town at the time of taking the list, (which we would not even intimntej that would make no difference in this case, for the plaintiff owned property in Chester liable to be taxed, and gave in his list of the same : and it is for the insertion of other property not liable to be taxed that the plaintiff now complains.

Bradley and Kellogg, for the plaintiff.

Everett and J. P, Williams, for the defendants.

The defendants’ counsel have urged the hardship that the defendants should be liable to the plaintiff, when the money collected of him has been paid to the town ; also, that the action should be brought against the town ; the action for money had and received. These suggestions may be noticed in conjunction. 1. The law gives a remedy to the party injured, whether the party injuring has gained or lost by the transaction. 2. If the town are liable at all, it could only be for the money by them received and retained, unless they had neglected to retain the part due to the state, after notice of the plaintiff’s claim. If there are two-folds as there may be, and as it is said there were in this case, the list-ers have a share which never goes to the town. For this the listers only could be liable to the plaintiff in any event whatever. Besides, we know of no law to prevent the plaintiff’s calling directly upon those, who have done the injury, without regard to the question, whether the money is in their possession, or has gone to the various obiects for which the several taxes were assessed.

The Court consider that the defendants are liable upon such facts as the jury must have found, and that case is the proper remedy ; and, therefore, the judgement of the county court must be affirmed.  