The opinion of the court was delivered by
Redfield, J.The important question in this case, is, whether the alteration made in the grand list of the several towns, by the committee of the legislature, is to be regarded, in asse.--.-ing town taxes. It is certain that was so under the Revised Statutes, p. 546 § 18; “ And such listers shall then proceed to finish their “ lists, by making the additions, or deductions, so made by the “ county and State average, and make out one entire list, and re- “ turn the same to the town clerks, by the tenth of December — on “ which, State, county and town taxes shall be made.” But the present law, which has been in force since 1841, provides that the list averaged by the State committee “ should be the list upon “ which State taxes shall be made.” And the present law contains also an express provision, that the appraisal of real estate, after being averaged by the county committee of listers, “shall “stand for the valuation of real estate for the succeeding five “ years;” and no such provision whatever was contained in the Revised Statutes.
This important alteration in the terms of the Statute, must have *418been intentional, and we have no means of knowing, why it was done, or for what purpose, except the one so clearly indicated in the terms used, that the State average should only affect State taxes — we see no good reason why it should be made to affect other taxes, but it is certain it did under the former law. The list under that law was not complete until these additions and deductions were made. And for that reason, among others, the list in the case of Henry v. Chester, 15 Vt. 460, was held imperfect and incomplete. In that case, be sure, both the additions required by the county and State committees were omitted, and where the county committee required ten per cent, to be added to buildings and lots, the listers actually deducted ten per cent, and all this was evidently done designedly, and with the purpose of oppressing the plaintiff, whose list of personal property was very large, his taxes for town purposes, being with interest, between $700 and $800. That case was decided, as it was, chiefly upon the ground that the defects in the list could not be fairly regarded as accidental, or Iona fide, as is there expressly said. In the present case, the deduction of eight per cent, from the list of real estate for 1842, and four years succeeding, for all taxes, but State taxes, is certainly not according to the requirements of the law then in force. ' But the list was complete, for all other taxes but State taxes before that. It was in no sense inchoate, or imperfect, as in the case of Henry v. Chester, and there is every reason to. believe this was done bona fide, or that it might have been so done. We could not, therefore, regard this case, as coming within the principles of the case of Henry v. Chester. And upon principle, we think the list, for such an error ought not to be regarded as void; but that it should be held as a mere mistake, like an error of computation in assessing a tax.
And where the action is for money had and received, as in the present case, or in case which are equitable actions, it was held on the last circuit, in Caledonia county, in the case of Fairbanks v. Kittredge and others, that the plaintiff could not recover more than his actual damages, resulting from the irregularity. And in the present case, as the plaintiff was assessed chiefly for real estate, it would seem probable, that he was benefitted by the deduction in 1842 et seq. We do not intend to say, that for such irregularity, as the present, the plaintiff could have any remedy except in assump*419sit or ease, very likely lie could not. But clearly, in this form of action, he could not recover for a mere circumstantial error, which had, in fact, operated to his advantage. And this principle is far more obviously applicable to a case of this kind, than the case cited from Caledonia county.
The list of 1847, was correct, except for State taxes, and we do not think the plaintiff can recover in this form of action for money paid for State taxes. That is not money, which the town ever received to retain — so of the State school tax — the town only collect it, as agents, and were not liable to this action after having paid it to the school district.
And here, too, the plaintiff is complaining of an omission, which operated to diminish his State tax, and where there is no pretence of bad faith, and no proof that the addition was ever properly certified to the listers.
From all which, it is evident, the judgment of the court below is more favorable to the plaintiff, than it would be likely to be upon the basis of our decision, and we shall affirm the judgment, unless the plaintiff thinks a new trial will be beneficial to him, in which case, we think he is entitled to it, as it does not absolutely appear with entire certainty how the defects in the list might affect the plaintiff.
The provision of the statute in regard to the sixth column of the list, has reference to a time prior to the county average, being required to be deposited, by the listers, in the town clerk’s office, before the first of July. It is said to be sure, that this shall be the amount upon which all taxes shall be assessed. But this has reference to those years, in which there is no appraisal of real estate, or else it is to be qualified, by what follows, that the county average, shall be added or deducted, for all taxes, and the State average, for State taxes.
The plaintiffs elected to have' judgment reversed and the case remanded for trial.