This is an action of trespass for certain lumber alleged to have been taken from the plaintiff by the direction of the defendant. The taking is admitted, but attempted to be justified on the ground that the only direction given, was by virtue of a warrant of distress issued by the defendant as treasurer of the town of Orneville, against the plaintiff as collector of taxes for *190the same town, for neglect in collecting and paying over taxes assessed in 1868.
Several objections are made to the form and substance of the warrant, of the validity of 'which we are unable to judge as no copy is found among the papers furnished us. But assuming it to be sufficient to answer the requirements of the law, it cannot avail as a defence to this action, as it was illegally issued. By the law under which the tax in question was assessed, — R. S., of 1857, c. 6, § 113, re-enacted in the revision of 1871, same chapter § 130, — before a warrant can be issued against a collector, he must have been delinquent in respect to taxes committed to him for collection. This commitment must have been such as the law requires ; such as would authorize the collector to compel payment; for without authority, there can be no. corresponding duty, and consequently no neglect. Tremont v. Clark, 33 Maine, 482; Waldron v. Lee, 5 Pick., 328--9.
To give the collector this required authority, he must have a legal warrant and a “perfect list” of the taxes under the hands of the assessors as required by R. S., c. 6, § 70, being § 56 of that chapter in R. S. of 1857. In this case neither of these conditions seems to have been complied with. The warrant is the same as that held to be defective in Orneville v. Pearson, 61 Maine, 552, and the list of taxes committed to the collector, the -original of which is in the case, does not appear to have been authenticated by the signatures of the assessors, or any of them. Foxcroft v. Nevens, 4 Maine, 72; Lowe v. Weld, 52 Maine, 588.
It is, however, contended that the collector is liable for whatever amount of money has been voluntarily paid to him. This is unquestionably true, but this liability can only be enforced in the proper form of action. The statute nowhere constitutes the treasurer, a tribunal to hear evidence and determine the amount which may have been paid to the collector. The tax. committed is the only basis for fixing the amount due, and if none has been committed, it is clear there can be no foundation upon which the warrant can rest. As no such foundation appeal’s in this case the *191warrant was unauthorized, and though it may be a sufficient protection to the officer serving it, it is none to the treasurer.
The only other question is that of damages. It appears that the lumber sued for was sold at public auction for one hundred and fifty-one dollars. There is no tesitmony tending to show that this sale was not entirely fair and after proper notice given. The sum paid for it at such a sale is prima facie proof of its value, and we find no testimony in this case sufficient to overcome it.
Judgment for the plaintiff for one hundred and fifty-one dollars and interest from, the time the lumber was taken as shown by the officer’s return upon the warrant.
Appleton, C. J.*, Cutting, Walton, Barrows and Peters, JJ., concurred.