The opinion of the court was delivered by
Bennett, J.This is an action of trover, and comes before the court upon a case agreed upon by the parties. For the facts of the case the court would refer to that agreement. By the statute, Rev. St. 539, § 3, personal property, not in the possession of a tenant, is to be taxed in the town in which the owner resides. The 15th section of the statute does not furnish a different rule, as to property of this description, where the owner resides in this state. Blood resided in Norwich, and had never resided in Thetford. He was not then within the jurisdiction of the listers of Thetford, and their whole proceedings as to him, were without authority and void ah initio. The case of Preston v. Boston, 12 Pick. 12, is in point.
This is not like the case of an over-valuation of one, who is liable to be taxed. Where a person is subject to taxation, and he, through mistake, has property set to him, of which he is not the owner, or is taxed for that for which he is not liable to be taxed, and also where there is an overvaluation, in all these cases he has a remedy under the statute; and if the listers shall refuse to give relief, he may appeal to the selectmen; and probably in such case, this might be held to be the only remedy. The case of Osborn v. Danvers, 6 Pick. 98, much relied upon by the defendant, is of this descrip*613tion. The general rule of law is, that, if persons, having a limited judicial authority, do any act beyond the scope of their authority, they make themselves trespassers; though, if the act be done within the limit of their authority, they are excused, though it be done through an erroneous or mistaken judgment.
It is well settled, that trespass, and not case, is the proper remedy against the listers. It is not the undue assessment, which works the injury, but the subsequent proceedings, instituted to enforce the payment of the tax. Trover is a concurrent remedy with trespass. It is said, in argument, that, at all events, this action will not lie against the collector; but the law is otherwise in this state. Thopinion of the majority of the court in Wilcox v. Sherwin, 1 D. Ch. 72, has been frequently overruled, and that of chief Justice Chipman established. The statute, which provides that no collector shall be liable to any action, which may accrue in consequence of any mistake, mis charge,., or overcharge, in the tax-bill committed to him for'collection, does not apply to this case. This is a case, where the action accrues by reason of the illegality of the imposition of- the tax; and in such case the statute gives the' collector a remedy over against the town. The case in the 9 N. H. Rep., to which we have been referred, was decided under a statute of that state widely different from ours.
It is urged in argument, that, as the plaintiff gave in his own list' in the town of Thetford, he thereby consented to be there taxed, and that he ought not now to complain. A similar fact existed in the case of Preston v. Boston, 12 Pick.; yet it was held, that the consent of the plaintiff to be taxed could make no difference in a case, in which there was no legal liability ; and that it would not afford any sufficient ground, upon which to levy a tax, the payment .of which was to be enforced by compulsory process. It would doubtless be true, that, if the willingness had continued until the time of payment, so that it might have been considered that the payment was made voluntarily, the maxim volenti non fit injuria would well apply; and no action, in such case should be sustained to recover back the money.
In the case of Pease v. Whitney, 8 Mass. 95, it was held, that, though the tax was improperly assessed upon the plaintiff, yet his request to the assessors, to have the lands in question assessed to *6145iim, was an answer for the assessors in an action of trespass against them. The soundness of this opinion may well be questioned. The gravamen of the injury, in that case, was not the illegal assessment; but the proceedings, had under the color of the process, to enforce the payment of the tax, worked the injury. To hold that a consent to be taxed carries with it the consent of the party to all dernier proceedings, which may be had to compel a payment of the assessment, is a deduction altogether gratuitous, and would, as it seems to me, in effect, establish such a payment to be what the law calls a voluntary payment. But in the present case the plaintiff had requested the collector to get the tax abated, informing him that he had been two-folded in Norwich, for not listing the horse in that town, and that he had there paid the tax; this, of course, would amount to a withdrawal of any consent to an enforcement of the payment of the tax to Thetford, though such inference should otherwise be attempted to be drawn.
It is said, that the plaintiff, by giving in his list in Thetford, increased the grand list for state and school taxes; and that, if he recovers in this action, the town must suffer by reason of his wrongful act. It is a sufficient answer to this argument, to say that it was the town’s own folly, to accept a list, in a case in which they had no right to impose a tax, and incorporate it in their grand list. The town should not complain of that which results from the folly of its listers.
We think, on the whole, that the decision of the county court should be reversed, and that there should be a judgment, on the case agreed, for the plaintiff to recover twenty dollars damages,-and his costs; — which is entered up accordingly.