The opinion of the Court was delivered by
Phelps, J.The only question reserved in this case is, as to the rule of assessing damages; — the plaintiff insisting that he is entitled to the value of the property taken, at al) events, and the defendants claiming a deduction for the amount of the legal tax satisfied by the distress.
The defendants rely on the case of Lamb v. Day, 8 Vt R. 407. In that ease the judgment and execution were regular and valid, and there was, beyond question, a valid subsisting debt. There was nothing irregular in the levy or sale, which, aside from the unlawful use of the horse taken in execution, would defeat the levy, or prevent a satisfaction. Yet, upon technical principles, the attaching' creditor and the officer were held trespassers, ab initio, by such using. Still the technical view of the case, taken by the court, did not alter the nature of the injury, nor the substantial ground of complaint, which was, not that the taking was in itself unlawful, or that the property had not been applied in satisfaction of a just debt, but that the defendant had unlawfully put the horse to service. This being the case, the party’s damages did not necessarily include the value of the horse, but were such in reality, as the party had suffered by the unlaw*508ful act complained of. At the same time, it by no means followed that the recovery in trespass would,of course, revive the judgment debt. Whether it would have that effect or not, depended upon the rule of damages which the court might adopt in the trespass suit. Under these circumstances, the course taken by the court was not only just and proper in itself, but prevented a circuity of action ; for had the court given the full value of the property, that circumstance would have entitled the. defendant to revive his judgment by scire facias or to enforce it by áction of debt, and to recover again from the plaintiff a part of the damages thus given. The court Would not, unless compelled to do so, render such a judgment as would, of itself, lay the foundation of a counteraction, and entitle the unsuccessful party to'recover back,in another form, a part of the money paid under the judgment.
In the present case, the court held the whole proceeding in reíatíon.to the tax to be illegal and void. Had the illegal portion of the tax been laid and assessed as a distinct tax, there would have been no difficulty in enforcing other taxes, lawfully laid ; but, unfortunately, the tax, laid for an object not within the corporate purposes or powers of the town, and Which the corporation could not legally impose, was blended, in the outset, by the vote creating it, with taxes for legitimate purposes, and was so assessed. It was impossible for the court to discriminate between that portion of the tax, which could be legally laid and that which could not. Hence the whole proceeding was declared void, and the whole matter rested where it would have done, had no vote been taken imposing a tax for any purpose.
There was therefore no debt of the plaintiff to be satisfied ; — no subsisting legal obligation to be discharged; — but the case was the same, as if the plaintiff’s property had been taken without process and without any legal purpose. The distinction, then, between the case of Lamb v. Day and this is, that, in the former case, there was a legal debt satisfied, and the plaintiff had thus far the benefit of the property. In this case, there being no debt to be satisfied, the application of the property upon the illegal and void tax was no benefit to the party. The rule of damages, therefore, must be the value of the property-.
*509The case of Irish v. Clayes et al. 8 Vt. R. 30, is analogous to Lamb v. Day. It was an action of trover, and the .evidence of a conversion consisted in a demand and refusal. Subsequently to the demand, the chattels were seized by a third person, a collector of taxes, and were regularly disposed of to satisfy the tax. The plaintiff having thus received the benefit of the property, in satisfaction of his own debt, the court held him entitled to nominal damages only.
Judgment affirmed.