The opinion of the Court was delivered by
Baylies, J.In the case of Gyfford vs. Woodgate, 11 East. 299, Ld. Ellenborough says “ faith is to be given to the official act of a public officer like the Sheriff, even where third persons are concerned.” The law makes the Sheriff a certifying officer of his own doings upon precepts, which are put into his hands for service; therefore his return, as Sheriff, is-conclusive evidence against himself, and it is prima,facie evidence of the facts certified against third persons. 2 Phil. Ev. 226; 9 John. R. 96.
But where an officer is not required by law to certify his doings, and he makes a certificate, what credit is to be given it ? This question seems to be answered by the decision of the Supreme Court, in the case of Davis vs. Clements, 2 N. H. 390. In that case, the plaintiff brought action of trespass against defendant for taking plaintiff’s steers. Defendant pleaded in bar, he was surveyor of highways, and took the steers as a distress for non payment of highway taxes. Plaintiff replied, that the- defen-*67tlant of his own wrong &c. took the steers, with a conclusion to.the country, and issue was joined. On trial by jury, it appeared in evidence, that the defendant was duly chosen surveyor of highways in Alton for the year 1816 and had in his hands for collection highway taxes against the plaintiff, and a warrant to collect the same; and to prove his proceedings in distraining.the steers to be regular, he -gave'in evidence -Ms -certified return of Ms doings -indorsed on said warrants
Richardson, J. C. in giving .die opinion of the Court, says, “ the other question to be settled in this case is, whether the surveyor’s return of his doings upon the warrant, was competent evidence to be offered by him to the jury to prove the diets stated in the return; and we are clearly of opinion, that it was not competent evidence.— His warrant was not returnable process; the statute has made it the duty of surveyors of highways to settle accounts and pay over any balance in their hands to the select men or town treasurer, but has not made it the duty .•of the surveyor to make any return of his doings upon his warrant. Where the law has made it the duty of a public officer to make a return of his doings, and has made him .responsible for the truth of his return, a return may be evidence ; but this is not the case. The return of the surveyor in this case is no better evidence for him, than his own confessions, and declarations would be, and was clearly incompetent evidence to be offered by him to the jury.”
There is a plain distinction between the return of a Sheriff, made on a returnable process, where the Jaw requires him to certify his doings, under his official signature, and the return of a surveyor of highways made on his warrant to collect highway taxes, which is not a returnable process, and by law the surveyor is not required to indorse, and certify his doings thereon : The return of the Sheriff is an official act, done under the oath of his office, and is deserving of credit; but the return of the .surveyor is not an official act, and was not done under the oath of his office; therefore his return is not to be credited like the sheriff’s.
If we examine the act (Slade’s Ed. 400,) entitled “An ' *68act regulating the collection and payment of rates,” we shall find, that by the third section, the collector of state taxes, in any town, is to receive a warrant from the Trea-suser of the State, commanding him to levy and collect the tax, and pay the same into the treasury, by the time prescribed by the act granting the same. The collector is also to receive an Assessment, or rate bill of the tax to be collected from the selectmen of the town.
Then the collector shall immediately give, at least six days notice, to each inhabitant or resident of such town, who is taxed in such assessment or rate bill, the sum at which he is assessed, and of the time, and place he will attend to receive such rate or tax, before he shall make any distress thereof,
And upon the neglect, or refusal of any person to pay his rate or tax, the collector is empowered, and required to distrain the goods and chattels of such person.
Then by the 4th section, the collector shall keep such distress four days; and if the rate or tax, with costs and 'charges, bo not paid in that .time, the distress shall be posted for sale, for the space of six days, in some public place within the town, and then shall be sold at public vendue to the .highest bidder. ' -
By the 9lh section, the collector may collect a tax, in his rate bill, in another town, ‘as well as ' ini his own; and 'shall, and may lovy and collect a rate, or tax, or such part thereof as shall be duo, at any time after the expiration of his year, as well as before.
By the 12th section of the act, when any town shall, grant a lax, as empowered by law, it shall be the duty of the selectmen to make but a rate bill of said tax, apportioned to the several persons of whom the samo is to be collected, as the law directs, and apply to some justice of the peace of the same county, for a warrant to collect said tax, who is hereby required, and empowered to issue such warrant, to the collector of taxes for such town. And such collector, on receipt of such rate bill, and warrant, shall have the same power, in all things, in collecting such tax, 'as is before in this act given to constables, in the collection of state taxes.
Hunt & Beardsley for plaintiff. Broten & partner for defendant.It does not appear, that the collector of state, or town . . taxes, is required to make return of his doings on the rate bill, or warrant in his hands, by virtue of which he made the distress; nor does it appear that such rate bill, or warrant is a returnable process.' I conclude, that the collector in making his defence in this suit, has a right to give in evidence to the jury the original rate bills and warrants in his hands, to show his authority to distrain the plaintiffs desk to satisfy the taxes which the plaintiff owed. So if the defendant had in his possession the original advertisement of the desk for sale, he might give this in evidence, it being an official paper; but if he had not the advertisement in his possession, he might give parol evidence of its contents, and of its being posted as the law required. 8 Mass. Rep. 111. Whatever facts in defence, the defendant failed to prove by said rate bills, warrants and advertisement, he might prove by parol evidence : h-might prove by parol, that the plaintiff was not an inhabitant, or resident, of the town, as an excuse for the defendant’s, not giving the plaintiff notice of the taxes before the distress ivas made $ also might prove by parol that in every respect, the Defendant complied with the law in taking, keeping, posting and selling said distress. But I apprehend, that the Defendant’s certificates, by him signed, showing the seizure, and sale of the Desk, were not legal evidence in the cause; because the law had not made the Defendant a certifying officer of these facts ; and the Defendant is not to make evidence for himself by certificates; which are not official. But as the Defendant offered parol evidence, as well as the certificates, and the Court excluded the whole, the judgmentofthe County Court is reversed and a new trial granted.