
    Amariah Taft versus John G. Metcalf.
    If the clerk of a school district wrongfully certifies to the assessors of the town, that at a legal meeting of the district it was voted tó raise a sum of money, and the assessors thereupon assess the same, a person arrested for not paying the tax cannot maintain trespass against the clerk, the injury being but a remete consequence of his act.
    Trespass for an assault, battery and imprisonment of the plaintiff.
    It was agreed, that at a legal meeting of the second school district in Mendon, held on October 15, 1827, the clerk of the district resigned his office, and thereupon the defendant was elected clerk and sworn. The warrant of the selectmen for calling the meeting contained no article for the election of a clerk. At a meeting of the district, warned by the defendant as clerk but without a warrant from the selectmen, held on December 14, 1827, the district voted to raise the sum of 800 dollars for the purpose of building a schoolhouse, and the defendant as clerk certified the vote, in May 1828, to the assessors of the town, but they neglected to assess the sum mentioned, while they remained in office. In October 1829 the defendant delivered to the assessors for that year a certificate in the following form ; — “ As clerk of the second school district in Mendon I now certify to you, that the following vote was passed at a legal and duly organized meeting of the inhabitants of said district, holden December 14, 1827 ; ‘ Voted that the district raise the sum of eight hundred dollars and cause the same to be assessed and collected for the purpose of building a schoolhouse in said district.’ John G. Met-calf, Clerk Second School District.” The assessors there upon assessed the sum specified in the vote, upon the polls and estates of the inhabitants of the district, and committed the assessment thereof, with a warrant for the collection of the same, to the collector of taxes for the town. The plain tiff was assessed the sum of $25-50, which he refused to pay, and he was thereupon arrested by the collector, by virtue of his warrant, and held under arrest three hours and until he paid the tax and the collector’s fees.
    
      
      Oct. 11th
    
    
      Oct. 8th.
    
    
      B. Mams, for the plaintiff,
    contended that the meeting on December 14, 1827, was not legally called, and that consequently the proceedings at that meeting and all the subsequent proceedings above mentioned were illegal. St. 1827, c. 143, § 10, 14.
    
      W. S. Hastings, contra,
    
    said that if the plaintiff had any ground of complaint, his remedy against the defendant was not an action of trespass, but an action on the case, the injury being only consequential on the act of the defendant. Barnes v. Hurd, 11 Mass. R. 57 ; Campbell v. Phelps, 17 Mass. R. 246 ; 1 Chit. Pl. 123 to 128 ; 3 Stark. Ev. 1446 ; McMillan v. Eastman, 4 Mass. R. 382; Campbell v. Phelps, 1 Pick. 66.
    
      B. Mams,
    
    in reply, cited Agry v. Young, 11 Mass. R. 220 ; Stetson v. Kempton, 13 Mass. R. 272.
   Per Curiam.

This is an action of trespass brought against the defendant as clerk of a school district, on the ground that he was the efficient cause of the plaintiff’s being arrested for the non-payment of a school district tax. The only question which we have considered is, whether the defendant is liable to an action of trespass. In order to maintain trespass, it is necessary that the injury to the plaintiff should be direct and not consequential. Here the clerk of the district gave a certificate to the assessors of the town, that at a meeting of the inhabitants of the district, which meeting the plaintiff alleges to have been illegal, it was voted to raise a certain sum of money ; and thereupon the assessors proceeded to assess the same and cause it to be collected. The act of the clerk then was only the remote cause of the injury complained of. The rule is laid down in Barnes v. Hurd, 11 Mass. R. 59, as follows : — Where the injury is committed by the immediate act complained of, the action must be trespass ; if the injury be merely consequential upon that act, an action of the case is the proper remedy.” In the case of Agry v. Young et al. 11 Mass. R. 220, upon which the plaintiff relies, an action of trespass was sustained against assessors, on the ground of precedent. The like action was supported in Stetson v. Kempton, 13 Mass. R. 272. These cases proceeded on the ground, that as the collector acted in obedience to the warrant of the assessors, who had a general jurisdiction of the subject matter, he was not answerable for the collection of an illegal tax ; but, as in trespass all are principals, and as he who commands an unlawful act to be done, is equally responsible as if he had personally done it, it follows that in cases where the law affords to a man a legal remedy for an illegal and unauthorized' seizure of his property or arrest of his person, by the command of another, that remedy is to be sought in the form of an action of trespass.

It is argued on the part of the plaintiff, that the assessors are merely ministerial officers, like the collector, and so are bound to assess the tax, upon receiving the clerk’s certificate. But this ground is not tenable. Assessors may exercise their own judgment upon the legality and regularity of the proceedings. They are not compellable to assess an illegal tax.

Cases have been cited, in which trespass has been maintained against a sheriff for the act of his deputy. Grinnell v. Phillips, 1 Mass. R. 530 ; Campbell v. Phelps, 17 Mass. R. 244. This at first view would seem to be an exception to the general rule, that the injury must be direct. But in such cases the law, for the sake of a more convenient and effectual remedy, proceeds upon the legal assumption, that the act of the deputy is the act of the sheriff. A party aggrieved by the act of the deputy, has his election to sue the sheriff or the deputy ; and as an action against the deputy must be trespass, the analogy of the law requires that the action against the sheriff should be in the same form.

Plaintiff nonsuit. 
      
       By Rev. Stat. c. 23, § 29, the clerk of a school district is answerable only for want of integrity on his own part; and if he certifies truly to the assessors the votes of the district for raising by a tax any sum of money, the district is liable in case of illegality in the proceedings had in relation to raising such money.
     