Independently of any statute provision exempting the defendants from liability for assessing a tax unauthorized by law, they would be liable to the plaintiffs. The St. of 1823, c. 138, § 5, was held not to apply to a case where assessors acted under a vote of a body not a legal school district, (even supposing a school district to be such a corporation as is described in that statute,) as the tax could not have been required to be assessed by any constituted authority. Withington v. Eveleth, 7 Pick. 106. But this point was more fully settled in the case of Freeman v. Kenney, 15 Pick. 44, where it was held that assessors were liable for assessing a town tax upon a person not an inhabitant of, nor an owner of estate lying within, the town; because they could not be said to have been required to assess a tax upon such a person, and were not therefore protected by St. 1823, c. 138, although they acted with fidelity and integrity.
It is however said, on the part of the defendants, that, under the provision of Rev. Sts. c. 7, § 44, the exemption from liability is broader than under St. 1823, c. 138, and the case of Baker v. *45Allen, 21 Pick. 382, is relied upon as to this point. That was an action for assessing a town tax upon a person not an inhabitant of the town, and it was held that the assessors were not responsible therefor, if there was no want of integrity and fidelity on their part. The opinion was based upon the assumption that the Rev. Sts. c. 7, § 44, were intended to enlarge the protection of assessors, and to extend it to cases where they had taxed persons not liable to be taxed. This was inferred from the change of phraseology in the latter statute. No suggestion appears in the notes of the commissioners, that they purposed any change in the existing laws. In fact, before the Rev. Sts. an additional statute had been passed, St. 1833, c. 166, the principal object of which was, as I apprehend, to remove the doubts that had existed, whether the St. of 1823, c. 138, embraced the case of assessments of taxes upon the inhabitants of a school district. This statute, which was not noticed in the case of Baker v. Allen, had introduced the change in phraseology, and furnishes the form of the section as introduced into the Rev. Sts., embracing the cases of town, parish, religious society and school district.
Waiving any expression of opinion, on the present occasion, as to the correctness of the decision as applied to the case then before the court—that of a town tax ordered to be assessed by a legally existing town corporation, a body responsible for all moneys received by them on an illegal assessment—the court are of opinion that the Rev. Sts. c. 7, § 44, do not exempt assessors from liability for making an assessment in a case where there is no legal school district to order such assessment. This position was distinctly affirmed in Bassett v. Porter, 4 Cush. 494. Indeed, any other rule would seem to leave the plaintiffs without remedy. The exemption of assessors from liability for assessments of taxes upon inhabitants of a school district, town or parish, is only in cases where such school district, town or parish really exists, and has competent authority to order an assessment of taxes, and is liable in an action by the party aggrieved for the amount of the tax illegally assessed. The authority or jurisdiction to act in the matter being established, the assessors *46are not responsible for errors in the proceedings emanating from such competent tribunal—thus leaving the question of the existence of the town, parish or school district, to be shown to those who justify under its votes.
In order to show a legal district, it was necessary to prove that the whole territory of the town was legally divided into school districts; and as the evidence introduced at the trial failed to show this, the defendants fail to maintain their defence, and the plaintiffs are entitled to judgment. Perry v. Dover, 12 Pick. 213. Fry v. School District in Athol, 4 Cush. 253. Bassett v. Porter, 4 Cush. 493, and 10 Cush. 421.
Exceptions overruled.