Robert Spear, as collector of taxes for the town of Warren, by virtue of a warrant from the defendants, two of the assessors of that town, seized and sold thereon the property described in the writ, for which act the defendants are now sought to be charged as trespassers, for conferring upon the officer unauthorized powers.
The assessment, for the non-payment of which the plaintiff’s property was sold, is said to be an unsatisfied balance of the highway tax of 1852, transferred into the money tax of 1853, in a supplemental and omitted list.
The annual meeting for the choice of town officers for the year 1853, appears to have been legally called, and the defendants to have been duly chosen assessors. But it is contended that they were not properly qualified by taking the oath required by law. R. S., c. 5, § 9, requires such officers to be “ duly sworn.” The oath which they severally took was, in substance, “ faithfully and impartially to perform the duties assigned them and the law, as embraced in the Act on the construction of statutes, was literally complied with. Ch. 1, § 3, rule 21.
Again: it is urged that the road tax was not legally transferable; that the assessors, for various reasons advanced by counsel, transcended their authority, and thereby imposed upon the plaintiff an unjust and onerous burden, and that the present action is his only remedy. If all these things be so, *377then it would seem that he ought to prevail in this suit, although the gravamen of the complaint appears to be the difference between the payment of a tax in labor and in money.
It is provided by E. S., c. 25, § 67, that “ the surveyor' shall give reasonable notice, in writing, if desired, to each person on his list, resident in the town, of the sum he is assessed to the highways and town ways, and also forty-eight hours notice, extraordinary casualties excepted, of the times and places lie shall appoint, for providing materials and laboring on the same; to the end that each person may have an opportunity to work thereon,” &c. And by § 70, that “the surveyor, at the expiration of his term, shall render to the assessors a list of such persons, if any, as shall have been deficient, on due notice, in working out or otherwise paying their highway tax; which deficient sums shall be placed by the assessors in a distinct column in the next assessment of a town tax upon such delinquent, and collected like other town faxes and paid into the town treasury.”
Although the law requires, that each taxable inhabitant shall bear his just proportion of the public burdens, yet it is difficult in all cases, owing perhaps to the predominant organ of secretiveness, to ascertain with exactness what that proportion should be. For the ascertainment of that fact, the statute has prescribed various modes of procedure, and invested the assessors, if they be possessed of sufficient moral courage, with the moans of a full disclosure. They can require of each individual, resident in their town, a true list of his estates, real and personal, under oath, which, if false, would subject the offender to the pains and penalties of perjury ; or if such list should not be duly presented, then all such delinquents are liable to be doomed for such property, or sums, as the assessors, in their judgment, may determine them to be possessed of; from which judgment, under such circumstances, the statute takes away all right of appeal. But such officers, owing to their small remuneration to be received— their hostile attitude imposed, and their fallibility implied, are protected from liabilities for certain mistakes and *378errors of judgment, in the honest discharge of their official duties, when in the exercise of their jurisdictional powers. With such views of the law, we will now proceed to the next subject of inquiry, which is, as to the defendants’ authority to insert the highway in the cash tax of 1853.
A highway tax must be deemed to be assessed by the assessors of the then current year, who receive the lists, ascertain and record the inventories, adjudge and record the valuations, and thereupon apportion the assessments. It is incumbent on the assessors to discover from the lists of the surveyors of the preceding year, such persons as were delinquent in discharging their highway taxes by labor or otherwise, and to place all sums thus ascertained in a distinct column in' the money tax of their own assessing.
At common law, all warrants, issuing from the proper authorities, are to be executed and returned by the officer to. whom they are directed and received, with his doings thereon, and his return, as to other parties, is conclusive. But “a list of the persons and the sums,” delivered by the assessors to the surveyors, may not properly be denominated a warrant; still, the list of deficient persons, and the amount of their deficiency, which the surveyors are to render to the assessors, cannot be legally so rendered,-unless the surveypr has first given the required notice, and made the requisite demand for the services; and, inasmuch as the statute requires no other return than such lists, it may be inferred, when such lists have been returned, that the surveyor has discharged all his duties, and that the names borne thereon have been delinquent in. the sums specified, after due notice; and a surveyor might become legally liable to respond in damages to the party aggrieved, who should return such list without a previous compliance with the requirements of the statute. But in order to render the surveyor responsible, such list, by him handed in, should bear his official signature, which was omitted in the present instance; and, consequently, the list so returned, was, in legal contemplation, no list, and therefore *379the assessors had no sufficient authority to justify themselves in their ulterior proceedings.
But it is contended, that the surveyor ought now to be permitted to come into Court and subscribe his list. Such liberty should not be granted, if the Court be satisfied from the evidence of the officer himself, introduced by the defendants, that his preliminary proceedings would not justify such an act. And, besides, we are of the opinion, that the records and documents, as kept in the clerk’s or assessors’ office, should be the defendants’ only justification; otherwise, they would be no protection to the persons assessed, if they were liable to be controlled by parol testimony and subsequent amendments. The defendants then have erred, to say the least, in the regular discharge of their duty. Are they liable in this action, or can they justify or excuse themselves under the statute, e. 14, § 56? That section provides, that “the assessors shall not be made responsible for the assessment of any tax which they are, by law, required to assess.” We have already seen that the highway tax of 1852 was assessed by the defendants’ predecessors; and it is argued that a deficient highway tax, which the surveyor is required to return at the expiration of his office, cannot be said to have been omitted by mistake; and there is much force in the argument. But still the question returns, were not the doings of the defendants within the spirit of the statute ?
In the first place, they had jurisdiction over the subject matter. The plaintiff was an inhabitant, and subject to taxation in their town, and had legally been assessed therein; he had paid his money tax, and a portion of the highway tax, without complaint or objection. Under such circumstances, it comes to the knowledge of the defendants for the first time, when about to make their supplemental list, that the plaintiff has been remiss in working out bis highway tax. We are satisfied that they erred, both as to matters of fact and law, but with no want of "personal faithfulness or integrity;” they were mistaken in supposing that they had the legal evi*380dence before them of any deficiency; they erred in transferring that deficiency to the omitted list.
But the assessment of a highway tax, is one thing, and the assessment of a money tax, another, the former may be only an incipient stáge towards the latter. To assess a money tax, is to ascertain from certain data, previously obtained, each individual’s just proportion, which he is to contribute to the joint fund for the protection of his property, liberty, and even life. The data so obtained, as the basis of taxation, is, first, the inventory and valuation; and, secondly, the delinquent highway taxes of the preceding year; and the requirement of a separate column for the insertion of the latter in the tax bills, was designed only to show the basis of such assessment. It was as much the duty of the assessors to ascertain and reassess for such delinquencies, as it was to make an original tax, and any error or mistake must refer as well to the one as to the other. Under the circumstances, as disclosed, the subject matter of complaint might have been presented to the assessors themselves, with the right of an appeal to the county commissioners, in the event of an unsatisfactory result. But however that may be, we'think that the error of the defendants is of such a character as to exempt them from personal liability. And, according to the agreement of the parties, the plaintiff must become Nonsuit.
Tenney, C. J., and Appleton, May and Rice, J. J. concurred.