The opinion of the court was delivered by
Redefield, Ch. J.This is an action upon the case against the defendants for neglect of duty, in the office of listers of the town of Wllliston, for the year 1847. The first count in the declaration alledges, that the plaintiff was liable to be listed, in that town, that year, for three hundred and fifty acres of land, and no more, and that in proper season, according to the requirements of the statute, he gave in that quantity of land. “ But the defendants well knoio“ing the premises ; but contriving,-and wrongfully and injuriously “ intending to injure the plaintiff, under color of law, did wrongfully appraise more land than plaintiff owned, &c., to wit, ninety- “ three acres more.” And that numerous taxes were assessed on such list, and plaintiff compelled to pay them. These facts were all substantially proved on the trial, or offered to be proved, which is the same thing. The county court ruled, that no recovery could be had against defendants unless they acted maliciously, and corruptly, in «the matter, and that, under this declaration, it was not competent to give such evidence. This is the whole case upon the first count.
There is no doubt an important distinction to be made, even in regard to such ministerial officers, as listers and town assessors, in regard to the character of their acts, whether they have an actual and absolute discretion, and judgment to be exercised in the mat*25ter, or the act is merely, and fairly, ministerial. In the latter case, ordinarily, they should be held liable for injuries, resulting, from their omission of duty, to individuals. They are bound to know their duty, and when it is plain matter of fact, to perform it. Now one of the duties imposed, by the statute, upon listers, is to appraise and set in the list, the real estate of the inhabitants and land owners, in town, “ and set the number of acres ” — “ the amount of the appraisal, and the amount per centum, to the owners thereof.”
Now the amount of the appraisal, is undoubtedly a matter of judgment, and discretion, and for the exercise of which, the party is not to be made liable, except for express, or implied malice, which could not in contemplation of law, be supposed to exist; unless upon the clearest proofs that the value was over estimated, without any reasonable or probable cause. When the action is predicated, of such a discretionary act, courts should require the distinct allegation and proof, of malicious or corrupt motive, in the officer. And that being shown, we do not see how the officer is to be screened, even in a civil action, from the liability to make good all damage resulting to others, from such acts.
The exemption of the judges of superior courts of record, and all judges, and justices of courts of records, rests upon peculiar grounds of policy, perhaps. They will not allow their judgments to be revised, in this collateral manner, by a jury. But a public, inferior officer, whose duties are of a subordinate, and chiefly of a ministerial character, cannot be allowed the same impunity, without altogether overriding the present well established law upon the subject, both in this country, and in England. It is quite possible to put perplexing questions upon this subject, as upon many others, and often difficult to find any satisfactory solution of them. But this class of officers have always been made liable for their omission of express and obvious matter of fact duties, and for all other injurious misconduct in their office, even in matters of discretion, when it could be shown they acted mala fide.
But we are not prepared to say, that setting the number of acres of land appraised in the list of the owners is anything more, ordinarily, than matter of fact. It may be a fact somewhat more obscure, and difficult of ascertainment, than most others. It may be attended with needless expense, to require listers, at their peril, to ascertain with any very nice degree of precision, the quantity of *26land appraised by them. We think it would be. But we think, after making all due allowance for inaccuracies and oversights, which undoubtedly should he made upon a generous scale, still, they must he required to act in good faith, and with common care, and skill, and prudence, and especially when they undertake to change a man’s own estimate of his land, and if they do this, either fraudulently, or maliciously, or through want of common care and skill, and damage ensues, they are liable. This was offered to be proved in this case on trial, and it seems to us, was sufficiently alledged in the declaration. All that was necessary to alledge, in a case of this kind was, that defendants did the act knowing it to be false, which is fully set forth.
But in regard to the other part of the case, there seems to us many embarrassments, in the way of the plaintiff.
1. It is confessedly a matter resting altogether in the discretion of the listers; of course there could be no recovery, except for an error, which was purposely made, out of malice toward the party injured. 2. The declaration, does not in very explicit terms, alledge any such misconduct of the listers. It is far less explicit, in that particular, than the first count. It goes evidently for omitting to give notice of this assessment, and for not filing, by the time required, a general list of the polls and rateable estate of the inhabitants, in the town clerk’s office. These are the substantial grounds of complaint.
In regard to notice, it was waived on trial. In regard to the list not being left in the town clerk’s office, it would be no ground of action against defendants, unless it caused injury to the plaintiff, and it must cause the injury complained of in the declaration, which is, in regard to this assessment of $250,00 for money, &c. In regard to this assessment, the list which was left, contained all which was requisite. It had the assessment in explicit terms, and was properly certified, and contained the general notice of hearing, as to any over assessment of personal property. So far as this assessment was concerned, it would not have been more useful to plaintiff, if it had contained all the plaintiff’s other list. It was useful to him mainly for the purpose of notice, to enable him to apply, within thirty days, to the listers, to have the assessment reduced, and if he did not succeed with them, then to the selectmen, by way of appeal, to have the same reduced. But having express notice, he *27•could not complain of tbe assessment, if it were sufficient to justify an appeal. And for this purpose, all that was important was, that it should sufficiently appear to he an assessment, by the listers; of this there could be no doubt. And being such, the plaintiff’s only remedy would be in the mode pointed out by the statute, and he ought to be regarded as having acquiesced in the justice of the assessment, unless he can show, by the most irrefragable evidence, that the listers had no good reason to believe he owned the property, and did not in fact believe it; but made the assessment from motives of corruption, or express malice towards the plaintiff, which ought, perhaps, to deprive the defendants of any claim to drive the plaintiff to his redress, by way of appeal. But we are very clear, that short of this, the plaintiff should be required to pursue the statute remedy. And courts should no doubt require such strictness of proof, in a case of this kind, as not to subject such officers to unjust apprehension, or embarrassment.
Judgment reversed and new trial granted.
Note. The case of Schiebel v. Fairbain, 1 B. & P. 388, is decided mainly, as it seems to me, upon the ground, that the facts being, at most, mere nonfeasance, under circumstances which imposed no obligation to act, did not create a good cause of action. In case of malicious refusal to countermand the writ, after having the costs paid, Eyre, Ch. J. suggests, that possibly an action will lie. B*ut then the gravamen of the action will be malice, as in suits for malicious arrest,, and malicious prosecution, and in such cases, it should undoubtedly appear in the declaration, that the malice, which is the very gist of the suit, did exist, and mere knowledge of the facts, and even of the duty to prevent the arrest, and gross neglect to do his duty, as in ascertaining the quantity of land accurately, is not sufficient. Something more direct, and express is required, both in the allegations and proof. Saxon v. Castle, 33 Eng. C. L. 161, is very much in point. That was for a malicious arrest, and contained very much the same allegations, as the present declaration: The facts were all necessarily, or in legal contemplation, within the knowledge of defendants; it was alledged, that they did the act complained of, under color of a judgment, wrongfully contriving and inten-ting to vex, &c., the plaintiff, and to cause him to be arrested, for a larger sum, than was due. The court held, that notice express, or implied, was necessary to be alledged, and proved, and for want of such allegation arrested the judgment.
But in most cases of this character, when the act done, and not the particular motive, or purpose, is the basis of the action, even when fraud, and bad faith, is essential, all that is requisite is, to alledge the scienter, as is done in this first count, and the fact then constitutes, with the knowledge of its being false, at the time, the cause of action, as we held, in regard to the first count.
The case, of the Thames Manufacturing Co. v. Lathrop, 7 Con. 550, seems to regard the entire list, as rendered void, by an omission to leave the required ab stract, by the time provided in the statute. We should not be prepared to go that *28length. The course of decisions, upon that subject, is now somewhat different, we think, from that, and other cases of that date; more favorable towards the proceedings of assessors, and more consistent undoubtedly, with reason and justice, ut res magis valcat quam nucet. In that case, the party had failed of an opportunity to take his appeal, as it would seem, but that is not the ground, upon which the case is decided.
The abatement in the taxes, made by the selectmen, confessedly, did not cover all the taxes assessed or paid, by the plaintiff*. It is important only, then, in making up plaintiff’s damages, if he finally prevails in the suit.
The meaning of the statute, in requiring the separate lists of individuals to be preserved and deposited in the office of the town clerk, has reference, probably, to the list made out at the time the property is given in, by the tax payer, or taken in by the listers. Any other interpretation of the statute would seem very useless, for the general list is supposed to contain all this, and there would seem no good reason for making out, at that time, a separate list. It has come down from the former statutes, with slight alterations of phraseology, perhaps; but still must signify, to be rational, what it formerly did, the depositing in the town clerk’s office the original separate list.