
    * Peter Colman and Another versus Mary Anderson
    Seals are not essential to warrants issued by selectmen for calling town meetings. Town clerks have authority to swear town officers, as well after the expiration of seven days from the meeting at which they are chosen, as within that time.
    If one chosen constable and collector of taxes be sworn only as constable, he is qualified to collect taxes, constables being ex officio collectors of taxes, when none others are appointed.
    Where assessors, before the statute of 1785, c. 50, assessed for the state and county taxes a greater amount than was required by the warrants therefor, the assessments were not for that cause void.
    Where the question was on the validity of a title to land derived under a collector’s sale of more than thirty years’ standing, the jury were properly instructed to consider every thing as proved, which mightbe reasonably and fairly presumed from the facts and circumstances proved, as to the regularity of the tax bills, valuations, warrants, &c.
    This was a writ of right, dated February 6, 1810, in which Peter and Susanna Colman demand, against Mary Anderson, two undivided sixth parts of a lot of land in Windham, in this county, containing one hundred acres, being lot No. 86, with the appurtenances ; and in which they count on the seisin of their late father, Peter Colman, within sixty years before the date of the writ, and from whom they allege that the right to the demanded premises descended to them, as his children and heirs, and of which they allege that the tenant hath deforced them.
    The tenant disclaims all right to the north-easterly half of said lot; and she defends the residue, or south-westerly half of the said lot, and issue is joined on the right to the same; she having, as guardian, prayed in aid the title of her children, who claim to hold the same as the heirs at law of her late husband, Edward Anderson.
    
    This issue was tried before Thatcher, J., at an adjourned session of October term, 1811.
    At the trial, the demandants admitted as true all the facts stated in the tenant’s disclaimer; and to maintain the issue on their part, they read to the jury an attested copy of a division of a part of said town, made by the proprietors thereof, by which it appeared that the said lot was drawn and allotted to the right of Peter Colman They also produced in evidence the return of an actual survey and allotment of the said division of lands into 140 lots of 100 acres, (said lot No. 86 being one of the said 140 lots,) by which return it appeared that the said survey and allotment were made in October and November, 1762, at the request of the committee of the proprietors of said town. They further proved from the records of the said proprietors the due and legal acceptance of said return on the 16th of June, 1763. They likewise proved that Peter [*106] Colman, to whose right *the said lot was drawn as aforesaid, died before the year 1762, leaving five children ; of whom Peter Colman, on whose seisin the demandants count, was the eldest, and so entitled to a double share, and that he died leaving the demandants his only children and heirs. On this evidence the demandants rested their cause.
    The tenant, in defence of her right, relied on a title derived under a sale of that part of the lands demanded which she defended, by Jonathan Loveitt and Ichabod Hanson, constables of Windham for the years 1778 and 1779, the same being sold by them as unimproved lands of non-resident proprietors, for the payment of sundry continental, state, county, and town taxes assessed during those years. In support of this title, she produced the warrants for calling the town meetings at which the town taxes were voted to be raised, the votes of the town for raising them, the several lists of assessments, and all the necessary proofs and documents to justify the said sales, excepting only the deficiencies and irregularities herein hereafter stated.
    Also a deed of said Loveitt, in his capacity of constable, dated February 10, 1780, conveying to Caleb Graffam in fee forty-six acres and thirty-seven rods of land, part of the fifty acres defended by the tenant; a deed of said Hanson, in his capacity of constable, dated February 14, 1780, conveying to said Graffam in fee forty acres and a half, stated to be the residue of, but probably including the remainder of the said fifty acres defended; a deed from said Graffam,, dated November 1, 1783, conveying to Jonathan Roberts in fee the south-westerly half of said lot, numbeied eighty-six, being the fifty acres defended as aforesaid ; and a deed from said Roberts, dated October 14, 1793, conveying to Edward Anderson, before named, in fee, the same fifty acres. The tenant also produced a deed of release, dated February 1, 1810, from the demandants, of all their right to lands in said Windham to one Samuel Farrar. It was also in evidence that, at the time of tire execution of the deed last mentioned, and for many years before, * the said demandants had been and continued disseised [ * 107 ’ of the demanded premises.
    To the evidence produced on the part of the tenant, the following irregularities and deficiencies were objected on the part of the demandants: —
    1. The warrants for calling the town meetings, at which the assessors and constables or collectors were chosen, and the moneys voted to be raised, were without seals.
    3. The assessors and constables were sworn by the town clerk, and more than seven days after they were chosen.
    3. The said Loveitt and Hanson, although chosen collectors of taxes and constables, were sworn only as constables.
    4. As to the continental tax for the year 1773, no tax act, no valuation by the assessors, and no warrant from the state treasurer to the assessors to assess the tax, were produced. And to that and a similar tax for 1779 it was objected, that there was produced no return of the respective assessments to the state treasurer, nor any warrant from that officer to either of the collectors to collect those taxes.
    5. All the objections to the continental tax for 1778 were taken to the state tax for the same year.
    6. It was objected to the county taxes for the years 1778 and 1779, that no estimate of the taxes by the Court of Sessions, no resolve of the legislature authorizing those taxes, and no warrant from the assessors to the collectors, were produced, and for the former of these years no apportionment of the tax on the several towns in the county was shown, nor any warrant from the clerk of the Sessions to-the assessors to assess the tax, nor any valuation by the assessors.
    7. To the town taxes for both the years, it was objected, that the lands of non-resident proprietors were not liable to be assessed for town charges; that no list of taxables or valuation was shown to have been returned into the town clerk’s office ; and that no warrant from the assessors- to the collectors to collect the tax was produced.
    *8. To the evidence of advertising said taxes, and [ * 108 ] the notifications of the sale of the lands for the non-payment of the same, it was objected, that the Continental Journal, printed in Boston, was alone produced, containing the said advertisements and notifications, whereas the tax acts for those years required the publication thereof also in the Boston Gazette; that the names of the grantees or owners of the several lots were not published, as well as the numbers of the lots; and that there was no positive evidence, as to the advertisement of the sale by Hanson, 
      that it was posted in the town of Windham thirty days before the sale ; but only that it was seen posted in a public place in said town “ a considerable time ” before the day of sale; and that Loveitfs advertisement did not specify the hour of the day at which the sale was to be held.
    9. To the several continental, state, county, and town taxes it was objected, that they were uniformly for a larger sum than was expressed in the vote or warrant respectively authorizing them ; as, of the state tax for 1778, the sum apportioned to Windham was 2291 Os. Ad., and the assessors assessed the sum of 2421 5s. Iffi..; for the continental tax of 2291 4s. 0d., they assessed the sum of 249118s. Ad.; and so of the rest. In their warrants to the collectors, the assessors in each instance directed the surplus to be paid to the treasurer of the town.
    For the tenant, it was said, in answer to these objections, that seals were not, at the time of the transactions in question, required to be put to warrants for calling town meetings ; that town clerks were authorized to administer the oaths of office to other town officers; and though the neglect of the assessors and constables to be sworn within seven days might have subjected them to a penalty, yet their qualification was sufficient; that where no collector is duly chosen and qualified, the constables are ex officio collectors. As to the non-production of the tax acts and warrants from the state treasurer, besides relying on the presumption of their being lost, arising from the distance of time, the tenant pro- [ * 109 ] duced a * certificate from tne present treasurer of the commonwealth, stating that the part of the state tax for the year 1778 apportioned on the town of Windham was 2291 As. 0d., and that no tax acts for said year were in his office, nor any copies of warrants issued to assessors ; and it was proved that application had been made at the secretary’s office for the printed tax acts for said year, but none were found there. As to the objectiqns to the county taxes, it was replied that neither an estimate by the Sessions, nor authority from the legislature, was then required ; that the other requisites will be presumed to be lost by time and accident. For the town taxes, it was said that they were to be assessed in the same manner as province taxes,-which required the assessment of nonresidents’ lands; and that a valuation and warrant might at this time well be presumed. Respecting the defects in the advertisements, it was proved that diligent search had been made for the Boston Gazette, with a view to show the publication of the advertisements in that paper, but that it had not been found. It was said that the names of the owners were not known. Before the taxes on the demanded premises, the original grantee was dead, and the lands had passed to other proprietors. It would be presumed that Hanson’s advertisement was posted thirty days, from the evidence that it was seen “ a considerable time ” before the day of sale. The omitting to name the hour was unimportant, and was very frequent in those times. As to the excesses in the assessments, it was said to have been a constant and universal practice to overlay, in order to provide against deficiencies in the collection ; and perhaps, at this distance of time, it might be presumed that the town authorized it, although the evidence thereof could not now be found.
    The judge who sat in the trial observed to the jury, that, it appearing that the transactions, constituting the tenant’s title, were of almost thirty years’ standing, and composed of a great variety of particulars, and such as required very different kinds of evidence to prove them, it was not to be supposed that she could, at this time, produce direct testimony * or evidence of [*110 J any kind to each of them; and he believed all the law required was the proof of such facts, papers, and documents, as might be considered the ground of strong presumptions of the existence of other facts. With regard to the notifications and advertisements required by law to be made in two public newspapers, he observed that, it being proved that a notification was in one of them, that being the only one which could be found, notwithstanding all due diligence was used in search of the other, it was competent for the jury to presume that a like notification was regularly published in the other, although not now to be found. And this principle, he thought, ought to govern them in forming their verdict, with regard to all the facts in the case. With respect to the assessments, he considered them to resemble, in some respects, the judgments of inferior courts; and that they ought not to be deemed illegal, and the sales consequent upon them vacated, although it should now be out of the power of the tenant to prove that the assessors had in all things followed the directions of the law in making the assessments. And if, notwithstanding all the evidence the tenant can now produce to reconcile the assessments to the law, some error might be discovered, in consequence of which the proprietor’s rights may appear to have been a little overtaxed, the proper remedy, if known at the time, was an appeal to the Sessions, or, if not known until after the sale of the land, would-be an action of the case against the assessors, to recover back the excess of the taxation, 
       Forasmuch as the collector is compelled by law to sell the land if the tax is not paid, he doubted whether, in case of an action against the collector, he ought to be held to show any thing more than the assessments, signed by the assessors, his warrants, and a compliance with the law on his part in advertising and selling. Nor could he see any reason why a purchaser under a constable’s or collector’s sale should ever be held to show any thing more.
    Under these instructions, the jury returned a verdict for the tenant. The demandants excepted to the said instructions as erroneous, and moved for a new trial. [*111] * The cause was argued upon this motion at the last-May term in this county, by Mellen and Whitman for the demandants, who urged the objections taken at the trial to the title set up by the tenant, and were replied to by Longfellow in support of that title. After which the action was continued for advisement ; and at this term the opinion of the Court was delivered as follows by
    
      
      
         [Vide Little vs. Greanleaf, 7 Mass. Rep. 236. — Dillingham vs. Snow, 5 Mass Rip. 547. — Sed vide Stetson vs. Rempton, 13 Mass. Rep. 272. — Libhy vs. Burnham 15 Mass. Rep. 144; and vide Stat. 1823, c. 138. § 5.— Gage vs. Currier, 4 Pick. 399 — Ingraham vs. Doggett, 5 Pick. 452. — Inglee vs Boszcorth, 5 Pick. 498. — Ed.]
    
   Sewall, J.

This action, for two undivided sixth parts of a lot of land in Windham, is in the form of a writ of right. The demandants count upon the seisin of their father, Peter Colman, deceased, and a descent to them of the shares demanded, as an estate in fee simple. The tenant defends fifty acres on the southwesterly half of the lot of land demanded; and as to the residue, she pleads non-tenure and a disclaimer.

At a trial of the issue joined between these parties on the right in the part defended, the tenant, having in aid the title of the heirs at law of Edward Anderson, to whom she is guardian, obtained a verdict against the demandants. The case has since been brought oefore the Court, upon exceptions for the demandants to the decisions and opinions of the justice, before whom the cause was tried.

The evidence, as well for the demandants as for the tenant, is stated very much at large in these exceptions; but the result to which we have been led, after a careful examination of the case, will render unnecessary any observations upon that part of the evidence which relates to the title of the demandants. They are to be considered, in this inquiry, as maintaining their title and demand; unless the tenant has prevailed^ under a title acquired from their ancestor, or against him in his lifetime.

The title under which the tenant has been permitted to succeed, so far as to obtain a verdict in support of it, is of that kind almost proverbially denominated a collector's title, as expressing a case of doubt and "difficulty. And collectors’ titles must continue dubious and difficult, in the proof and evidence required to sup- [ *112] port them, so long as they remain * unassisted by any other limitation than that which applies in a writ of right in common cases of disseisin.

The defence in this action is in the right of the widow and children of Edward Anderson; and an estate in fee simple in fifty acres, being the south-westerly end and half part of the lot demanded, is deduced to him, by several mesne conveyances, from one Caleb Graffam. His title was a deed to him, dated the 10th of February, 1780, made by Jonathan Loveitt, as constable of the town of Wind ham, by which he bargained and sold in fee to Graffam forty-six acres and thirty-seven rods, part of the premises defended; and another deed made by Ichabod Hanson, dated the 14th of the same February, by which, as constable of Windham, he bargained and sold to the said Graffam, in fee, forty acres and a half of the same lot of land. The part conveyed by Loveitt is located as next ad joining to a parcel of the same lot, mentioned to be thirteen and a half acres, before purchased by the said Graffam, which is understood to be at the north-easterly end of the lot, and therefore extends from that so far as to include at least nine acres beyond the centre line of the lot towards the south-westerly half part; and Hanson’s conveyance, although expressed to be of lands in common and undivided, yet in effect includes the residue of the lot.

These deeds are to avail, if at all, upon the legal authorities of the constables; and it was thought at the trial incumbent upon the tenant to prove all the circumstances requisite in the due execution of those authorities ; and this, notwithstanding the length of possession under these deeds, and the long acquiescence of the parties, otherwise entitled to the premises thereby conveyed. Nor is it, in fact, for the heirs of the original proprietor that this demand is prosecuted ; but, as appears from a deed introduced at the trial, for the use and benefit of one who has recently obtained a transfer and release of their title, whatever it may be.

The exceptions, which have been argued, suggest these two inquiries upon the evidence stated, each comprising a number of particulars.

* 1st. Whether the evidence admitted to the jury was [ * 113 ] not incompetent, and whether the verdict is not without the requisite evidence, in several particulars essential to the title under which the tenant holds. And,

2dly. Whether the directions to the jury upon the legal result of the evidence were not incorrect upon the facts proved.

Under the first head of inquiry may be comprised what relates to the warrants for calling the town meetings, at which the assessors and constables were elected, their qualifications or oaths ol office, and the deficiency of evidence, as to the tax acts, warrants, valuations, advertisements, &c.

And as to all these difficulties and objections, with which the trial was embarrassed, the Court are clear in the opinion that seals were not essential to warrants for town meetings; that town clerks had authority to qualify assessors and constables, the time specified being directory only, or respecting the right of the town to renew the appointment, and sue for the penalty to be recovered on refusal ; and that, having been sworn as constables, they were qualified in that respect to collect the taxes in question; because constables were ex officio collectors, when no'other person is distinctly and exclusively appointed as collector; and that the judge, as to these and the other requisites of tax bills, valuations, warrants, &c., was right in submitting such evidence as there was, although incomplete ; and, if the jury were satisfied that the deficiencies in the evidence were not chargeable to the fault or negligence of the party, that nothing in the power of the party to produce was wilfully withheld, the jury were very properly instructed to consider every thing as proved, which might be rationally and fairly presumed from the facts and circumstances proved. In short, at the distance of time which had intervened between the constables’ sales and the trial, it was unreasonable to require evidence of the particu- [* 114] lars which the tenant in the *case at bar was put to prove; especially evidence from documents not intrusted with the party, or transferred with his title.

The case is, in this respect, within the principle of the decision by this Court in the case of Gray vs. Gardner, where a title under an administrator’s sale wa? questioned; but the interval was not exceeding twenty-two years.

As to the legal result of the facts proved, it must be understood, from the copies of the advertisements, upon which the jury were directed to consider the fact of advertising proved, that Loveitt first advertised the amount of taxes on sundry lots in Windham, including the land now in question, which, being due, were in his hands to be collected. All persons are therein required to make payment to him, and, in default thereof, they are notified that their several lots will be sold as the law directs. This advertisement was dated the 2d of November, 1779, and appears to have been published as early as the 18th of the same month, and to have been continued three weeks successively. This, however, was not an advertisement of a sale, or of any time or place. But this was, as we apprehend, a sufficient compliance with the provisions of the tax act, as to the previous notice required to be given three weeks successively; and we adopt the construction contended for by the counsel for the tenant, that the term of one month applies entirely to the posting in some public place in the town.

ADDITIONAL NOTE.

[Pruden vs. Allden, 23 Pick. 184. — Whitney vs. Sprague, 23 Pick. 198. — Battles vs. Holley, 6 Greenl. 145. — Green vs. Blake, 1 Fairf. 16. — Purrington, vs. Dunnings 2 Fairf. 174. — Jackson vs. Miller, 6 Wend. 228.---vs. Brooke, 8 Wend. 487 — F. H.]

There is then a second advertisement by Loveitt, in which he gives notice to the owners of certain lots, among others in the second and third divisions, the same as before, and including again lot 86, that so much of the said land will be sold as to discharge the taxes set on said lots; the sale to be at the house of, &c., on the 31st day of January then next. This advertisement was dated, I presume, December 10, 1779. And accordingly its first appearance in the paper must have been December 30, 1779 ; and *the three weeks successively brought the adver- [ * 115 ] tisement to the 13th of January, 1780, as the proof was of the continuance of the publication. The only question is, therefore, as to this objection, — whether the commencing of notice thirty days previous to the sale is a sufficient compliance with the law, which requires thirty days’ previous notice. And we are clear in the opinion that it is. The statute has not directed that the last publication shall be thirty days before the sale. It is sufficient, if the notice by posting advertisements commence thirty days before the day of sale,

As to the omission, from both sets of advertisements, of the names of the proprietors, there is no evidence of any communication or knowledge of them. The name of the original proprietor of the right in the township, to whom the lot in question, was drawn, was, at that distance of time from the grant, no indication of the proprietor at the time when the taxes were assessed. And a statement of the sum assessed on the several divisions or lots was a sufficient compliance with the statute in this particular.

The difficulty upon Loveitfs advertisement, if the copy fur nished me is correct, is, that it contains no specification of any hour of the day when the vendue was to be holden. On this point 1 have had some doubt; but upon the whole I think it is not to be insisted on. This precision is not explicitly required; and as far as advertisements for similar purposes are evidence of the construction given at the time, we must conclude that it was not then understood to be essential. The newspapers of that day are full of such advertisements, and a very considerable proportion of them express no notice of any hour of the day appointed for the sale.

Hanson's advertisement specifies the hour of the day appointed for the sale. In other respects his advertisements are upon a footing with Loveitt's; and the sales by both constables are, we think, warranted by the provisions of the statute, as to all the requisites of notice; that is, so we must understand the fact upon this verdict.

* It is also proved, as to the continental, state, and county taxes, that the assessments committed to Loveitt for 1778, and to Hanson for 1779, exceeded in the amount of each list the sums granted by the General Court, and by the Court of Sessions respectively. For instance, in 1778, of the tax granted in that year by the General Court, the part apportioned to the town of Windham was 2291. Os. Ad.; and, to provide therefor, the assessors made a list of assessments, as for the state tax, the aggregate of which was the sum of 242/. 5s. l$d., and Loveitt was directed by the assessors to pay to the state treasurer the said sum of 229/. Os. Ad-., and to the treasurer of Windham the residue, being 13/. 5s. 3id. Similar overlayings or surpluses are apparent in each assessment of the public taxes; that is, state and county taxes, as distinguished from the assessments for the town of Windham, and for their parish concerns.

It is also to be observed, that the warrant from the state treasurer, at that time necessary to the authority of the collector, directed and authorized, in each instance, the collection of the whole of the respective sums set on each particular person. The question, then, is, as to this objection, whether the legal result of this evidence is not, that these constables proceeded in their collections upon a void authority; because the warrants to them authorized the collection of assessments exceeding the powers of the assessors.

With a diligent inquiry, we have not found any statute provision, which enabled the assessors to enlarge the sum apportioned for the state or for the county, either to suit their convenience in calculating and forming the lists of assessments, or with a view to meet abatements, or defalcations and mistakes, and to insure the sum for the collection of which the assessors, the town, and the collector, became immediately answerable, to be obtained upon a warrant of distress against them. Precautions under certain limits, some anticipations adequate to these purposes, it is obvious, would have been very reasonable; and if the assessors of Windham were in an error in this particular, it is a notorious * fact that the [ * 117 J error was a common one, and, as we believe, of long standing.

Failing to find any express provision at that day, we have been led to examine, with some deliberation, whether, upon general principles, this power, exercised by assessors, had not some warrant or authority; for it is hardly supposable that a practice which had obtained so generally, and for such a length of time, had been without any legal principle to justify it. But we are sensible, whatever latitude of presumption may be employed to supply perishable testimony and evidence of facts, the rules of law are to have some other support; and because in the statute of 1785, c. 50, § 11, which is the revised statute, concerning the power and duty of assessors, there is an express provision to the effect required, to answer the convenience of assessors in making their assessments, but with limitation as to the extent of this authority; and, as nothing similar is found in any former statute relative to this subject, it may be argued that none existed, and that former assessments with overlayings were wholly irregular. Yet, upon the whole, we cannot say that there was not necessarily implied, in the general duty and power of assessors, sufficient authority to meet the obvious occasion. We think these overlayings are to be regarded as appropriations by the town, intrusted with the assessors, to meet the particular expenses and liabilities to be incurred in assessing and collecting state and county taxes.

If this power should be thought doubtful, still the general question recurs, Did this error vacate the assessment, to the effect of rendering it null and void? Were constables trespassers in enforcing the warrants of the state treasurer, in collecting the whole of the respective sums assessed on each particular person, according to the words of the warrant, and the duty which the state was by law authorized to exact ?

It is true that the office of an assessor is rather ministerial than judicial; but there are many particulars in which a * sort of judicial discretion is. permitted them. They [*118] are to exercise their judgment in stating the aggregate amount upon which the assessment is to be apportioned, in determining the ratable property, and the value of it, for which each individual is to be assessed. An assessment is erroneous, if property is omitted in the valuation which ought to be assessed, or if property is overvalued which is liable to assessment, or an individual is charged by mistake, or even with bad intentions, with property for which he is not liable. But the collector or constable has no superintendence of the assessors, no power of correcting them, or of refusing the assessment upon a suspicion that these errors have happened. He is subjected to the control of the assessors, and obliged, under severe penalties, to receive the assessment, and to enforce it. according to the powers intrusted with him; among which is that of selling unimproved lands of non-residents, where the assessments remain unpaid after due notice And we see no distinction between the duty and authority of the constable or collector, in any of the cases within the scope of his warrant, whether thé payment be enforced by a sale of lands, or by a sale of chattels, or by an arrest. If a sale is void under his warrant for an error in the list of assessments, it would be void in every other case. He must be liable to an action for moneys as received under a void authority; and for a distrainer of personal chattels, or arresting the body of one assessed, he must be a trespasser.

Poor rates are apportioned and collected in England in a method analogous to that in use with us for direct taxes, whether state, county, or town, enforced by the assessments of the assessors appointed in the several towns.

The general principle adopted in England is, as resulting from me principles of the common law, that a defect in the rate will not avoid the warrant of distress upon it, so as to make those who grant, and those who exercise it, trespassers ab initio; not even where the rate was supposed to have been anticipated in point of [ *119 ] time, or estimated for a * longer period than was authorized ; because objections of this kind are proper subjects and cases of appeal.

Where an-assessment, however, of a poor rate had been charged upon property not taxable by the statute, the justice who granted a warrant of distress, and the collector who executed it, to enforce that particular assessment, were holden liable to an action of trespass. There, the 'case not being within the authority of the overseers, their assessment was void, and no foundation for the warrant of the justice or the proceedings of the collector. In England, the jurisdiction of abatements, of correcting lists of assessments, of setting them aside, and directing new assessments, is in the Court of General Sessions, to be exercised on the appeal of any party aggrieved by an error in the assessment he is charged with, oi any error which affects the whole list.

In the case at bar, the property assessed was subject to the authority of the assessors. With us they have the power of abating, of correcting their lists after an assessment made. They are, as to all over-assessments, a court of special jurisdiction; and the consequence is, that, in every case within their power to decide, their warrant justifies the collector or constable, who is holden to execute it; and he does not incur the peril of their misdoings or wrong adjudications or estimates, in a case within their jurisdiction.

Upon the whole, the opinion of the Court is, that the overlaying, if an irregularity in the assessment, or an error in the judgment of the assessors, the case itself being within their geneval authority, will not vacate the warrant to the collector or constable. He is justified by the warrant; and the remedy, where any injury is sustained, is against the assessors. We think ourselves bound to view this case as within the reason of the decision in the case of Dillingham, vs. Snow, where the error was an omission of ratable property from the list of valuations, by which each assessment was increased beyond its due proportion, Here the increase * is an excess, as it is supposed, upon every assessment [ * 120 ] of the state and county taxes, because the aggregate ■ amount exceeds the whole tax to be assessed for that particular purpose; but no person liable is essentially injured, because the excc-ss, if recovez-ed, is answered for to the town treasury, and is in fact applicable, and must be applied to, and is generally exhausted by, defalcations and errors in the assessments, which are finally to be corrected by the judgment of the assessors, in allowing abatements and charges of collection.

The assessments in question were lawfully charged upon the town, and for which a warrant or order had been granted, to be exercised at the peril of the assessors, the towrn being liable for all deficiencies. There was no intention of assessing another and different sum ; but, to avoid the uncertainties incident to the assessments ; and because some are comprised in the list whose capacity to pay at all, or to pay the amount assessed upon them, is uncertain ; and because the assessment itself is liable to defalcations and errors, for which the assessment on the town must respond to the state and county treasuries; and because of possible errors in cal culations, — the list is issued, and the warrant executed upon it, notwithstanding the aggregate of al lthe assessments, if collect© 1, would exceed the sums payable to the state and county treasurers ; the surplus, if collected, being to be paid to the treasurer of the town. It is reasonable in itself that this provision should be made ; but, if it was an unlawful anticipation, the error was in the judgment of those assessors who made the lists of assessments., But that will not avoid the proceedings of the officer who acts under a warrant, suitable to the case, in enforcing the assessments.

The verdict is confirmed, and judgment is to be entered accordingly. 
      
       ADDITIONAL NOTE.
      [See Abbot vs. Hermon, 7 Greenl. 118. — Kellar vs. Savage, 5 Shepl. 444.— Tucket vs. Aiken, 7 N. H. 113.— Briggs vs. Murdock, 13 Pick. 305. — F. H.]
     
      
      а) [Vide The Margate Pier Company vs. Hannam, 3 Barn, Aid. 267.— Ed.]
     
      
       3 Mass. Rep. 399.
     
      
      
        [Blossom vs. Cannon, 14 Mass. Rep. 177. — Pejepscut Proprietors vs. Ranon, 14 Mass. Rep. 145. — Knox AL vs. Jenks, 7 Mass. Rep. 488. — Ed.]
     
      
       In the copy, which came up in the case, this advertisement was dated 1778.
     
      
      
         [Vide Frothingham vs. March, 1 Mass. Rep. 247. — Bachelor vs. Bachelor, 1 Mass Rep. 256 — Welman vs. Lawrence, 15 Mass. Rep. 326. — Ed.]
     
      
      
         [Sed vide Iibby vs. Burnham, 15 Mass Rep. 144 —Stetson vs Kempton, 13 Mass. Rep. 272. — Ed.]
     
      
       1 Burr. 580. —2 D. & E. 560.
     
      
      
         2 D. & E. 374,
      
     
      
       5 Mass. Rep. 547.
     
      
      
         [Vide etiam Little vs. Greenleaf, 7 Mass. Rep. 236. — Sed vide Libby vs. Burnlam. 15 Mass. Rep. 144. — Stetson vs. Kempton, 13 Mass. p. 272. — Ed.]
     
      
      
         [Vide Henderson vs. Broxon, 1 Carnes’s Rep. 91. — The general rule of law, as to actions of trespass against persons having a limited judicial authority, is plain and clear. If they do any act beyond the limit of their authority, they thereby subject themselves to an action of trespass; but if the act be done within the limit of their authority, although it may be done through an erroneous or mistaken judgment, they are not thereby liable to such action. — Doswell vs. Impey & Al., 1 Burn. & Cresw. 163.—Ackerley vs. Parkinson, 3 Maule Selw. 411. — Basten vs. Carew, 3 Barn. & Cresw. 652. — Ex parte King, 15 Ves. 126. — The case of the Marshaser, 10 Co. 76 But see Lincoln vs. Hapgood Al., 11 Mass. Rep. 350. — Ed.]
     