The plaintiff being assessed on his property in the sum of seventeen dollars and sixty-nine cents to defray the expenses of a school house in the defendant’s school district, refused to pay the same. A warrant for its collection was duly issued to the collector of taxes, who seized the personal property of the plaintiff, and sold the same at auction, for thirty-five dollars and twenty-nine cents.
But the collector seized and sold articles exempt from attachment more than was necessary to pay the tax and charges of sale, neglected to deliver the plaintiff an account of the same or to return the overplus, and thereby became a trespasser ab initio. The plaintiff sued him as such and recovered judgment for forty dollars and costs on which judgment execution has duly issued.
The plaintiff now brings assumpsit for so much of the proceeds of the sale as was paid the defendants for his taxes.
The plaintiff might sue in tort or by waiving the tort, in assumpsit, but the damages would depend on the form of action he might adopt. In the one case he would recover the value of the property sold, in the other the proceeds of its sale. He has elected the former remedy and has recovered damages for his property unlawfully taken and sold. The judgmentthusrecovered would seem to be a bar for another action for this injury, though there may be a different form of action. White v. Philbrick, 5 Greenl. 146. This suit is for less than half of the proceeds of sale. Having recovered judgment for the proceeds as a whole, he cannot waive a fraction' of it and recover for a portion of it as the result of a sale. Ware v. Percival, 61 Maine, 391; Dunbar v. Boston, 112 Mass. 75.
Walton, Barrows, Daneorth, Peters and Libbev, JJ,, concurred.