
    HUSE v. MERRIAM & al.
    
    ff in the assessment of a tax, the assessors exceed the sum voted to be raised' and live per cent, thereon, though the excess be of a feiv cents only, the' whole is void; and the assessors are liable in trespass to the party whose goods have been distrained for the tax.
    This was an action of trespass vi et armis for taking away fhe plaintiff’s horse, and it came lip to this Court by exceptions filed pursuant to the statute. The defendants justified as assessors of Belfast, proceeding in the discharge of their duty to assess a sum of money voted by the inhabitants of one of the school districts in that town for the erection of a school house ; the particulars of which, and the issuing of their warrant to the collector who distrained the horse for non-payment of the tax, were set forth in the brief statement filed in the case. To the. regularity of these proceedings various objections were taken, among which was this, — that the sum assessed exceeded the amount voted and five per cent. thereon, by the sum of eighty-
      seven cents ; the sum voted being two hundred and fifteen dollars, and the amount of the whole assessment being two hundred and twenty-six dollars and sixty-two cents;
    
      Crosby, for the defendants,
    resisted this objection on the ground of the smallness of the excess; — and he insisted that if the maxim de minimis non curat lex meant any thing, it ought to be received to protect assessors when, in the honest discharge of their duty, they Unintentionally exceeded the strict legal limit, by so small a trifle. He said that this case differed from Libby Vi Burnham, 15 Mass. 144. where the overlaying was large and was deliberately made; and contended that assessors, for an inadvertent mistake in a matter within their jurisdiction, were not liable as mere trespassers. Dillingham v. Snow, 5 Mass. 558i
    
    
      Johnson, on the other side,
    was stopped by the Court; whose épinion was afterwards delivered by
   Mellen C. J.

This cáse conies before us on exception^ to the opinion and direction of the Court of Chmmon Picas.— That Court decided that the assessment, under which the defendants attempted to justify the act complained of by the plaintiff as a trespass, was illegal and void, because they were authorized by the vote of the town of Belfast to assess only the sum of 8215s, and yet did in fact assess $226,62 — being $11,02 more than the sum voted; and that, though by statute assessors may add to the sum voted five per cent, on its amount and legally assess the whole, yet in the present case they assessed on the sum voted 87 cents over and above tfie five per cent. — To this opinion exception was taken. — It is contended that this sum of 87 cents is such a trifle as to fall within the range of the maxim de minimis non curat lex ; — but if not, that still this small excess does not vitiate the assessment. — The maxim is so vague in itself as to form a very uncertain ground of proceeding or judging ; and it may be almost as difficult to apply it as a rule in pecuniary concerns, as to the interest which a witness has in the event of a cause; — and in such a case it cannot apply. — Any interest excludes him. In Boyden v. Moore adm'x. 5 Mass. 365. this subject was under consideration'. — Forty-one cents were hot considered a trifle. — The Chief Justice observed that “ frac- “ tions, not to be expressed in the legal money of ¿ccóunt, are li trifle's and may bé rejected.”

- The only question then is whether1 the assessment of this unauthorised excess vitiates the assessment? The case of Dillingham v. Snow, 5 Mass. 547. is different-from this. — There some rateable property was omitted which should have been contained in the list of valuations, by which each assessment ivas increased beyond its due proportion; but no more was assessed than by law the assessors had authority to assess. The case was completely within their jurisdiction, and the Coürt in giving their opinion expressly recognize and state this distinction. Neither is the case of Colman & al. v. Anderson, 10 Mass. 105. similar to this. The assessments then under consideration were made before the statute was enacted authorizing overlayings of 5 per centand at a time when overlayings to any reasonable amount were usual, vvefe deemed proper* and rvere acquiesced in ; but eveii in that cáse SewallJ. in giving the opinion of the Court, says, “ The overlaying, if an irregularity, will not vacate the warrant to the collector or constable ; he is justified by the “ warrant, and the remedy where án injury is sustained, is against the ássessorsf — the very remedy resorted to in this ease. In Libby v. Burnham, 15 Mass. 144. it was expressly decided that “ the assessing more than Gveper cent, above the sums “ voted by the town to be raised, makes the assessment illegal “ and void.” — The same point was also decided by this Court in the case of Elwell v. Shaw, 1 Greenl. 339. — Although the excess in' the case before us is very small, it makes the assess-" inent void. — If the line which the legislature has established be once passed, we know of no boundary to the discretion of assessors; — Accordingly the exception is overruled and

Judgment affirmed;  