The opinion of the court was delivered, at the circuit session in June, by
Isham, J.The pleadings in this case raise,the single inquiry *194whether the tax mentioned in the several pleas in bar was legally-assessed. On a former hearing of this case it was held that to assess a tax was to fix and ascertain, in due proportion, the specific amount to be paid by each person liable to pay taxes; and that in the assessment of a school district tax, the amount was to be ascertained by the prudential committee from the vote of the district - and the grand list. The averments in the pleas in bar, which are not traversed, are admitted to be true. It is, therefore, admitted upon the face of this record that Aaron Hinds, William T. Whitford and Alanson Norton were the then prudential committee of the district; that a vote laying a tax on the district was passed on the 2d of December, 1844, and that the assessment was made upon that vote and the grand list of that year. It was clearly incompetent for the plaintiff to introduce any evidence whatever showing that no such persons were at that time the prudential committee of the district, for no averment in the pleas can be disproved which is not traversed or denied by the replication. But whether the persons named in the pleas were the same persons who assessed the tax, was a proper inquiry, as that was a question of identity ; and for that purpose the testimony of Aaron Hinds, proving that identity, was unobjectionable. We think, also, the tax in this instance was properly assessed on the grand list of 1844. The act of 1842, sec. 11 (Comp. Stat. 460, sec. 50), requires the grand list to be completed and returned as finished, to the office of the town cleric, on or before the first Monday in December in each year ; so that the vote of the district laying this tax was passed on the same day the act required the grand list to be filed with the town clerk as finished.- There can beno fraction of a day on this subject, nor can there be two grand lists in existence at the same time; and when the act provides that the grand list shall be filed on or before a given day, it was intended, we think, that on that day the new list should come into existence and be the basis of taxation on and after that period for the year ensuing. The words on or before are not, in this instance, to be considered as synonimous with the words from and after. As a necessary consequence no assessment could have been made on the grand list of 1843, as that expired and became of no effect on the day previous to the vote of this tax. It is well settled in this state, that the assessment of a tax *195must toe made on the list in legal existence at the time of the vote, and if made on any other the tax is wholly void; Collamer v. Drury, 16 Vt. 574; Waters v. Daines, 4 Vt. 601. The district clearly had the right to adjourn their meetings to the time when the vote was passed, and surely we are not to judge of their motives in doing so, nor can their motives affect the legality of that assessment.
It is insisted, however, that the tax is rendered illegal by the irregular proceedings of the prudential committee in making their assessment on the real estate within the district. It appears from the case that there were several persons residing out of the district who owned real estate within it which was set in the grand list of the town and duly appraised; but that part of the land which lay within the district was not designated in the grand list by the listers. The statute provides that “ all real estate shall be taxed in the district in which it is situated, and that the committee shall assess the tax on the lists of the inhabitants of such district, and on lands in such district belonging to persons living out of it.” It is also provided that “ the listers shall designate in the grand list the school district in which all real estate is situated,” but no provision is made for a separate valuation of the land by this act. The object of the act was to provide a certain and permanent basis on which the state, town and school district taxes could be assessed, and when completed and filed with the town clerk, it is not the subject of alteration or correction by either listers, selectmen or school district committee. If the grand list of 1844 was conclusive upon the prudential committee in the assessment of this tax, and if they were not permitted to assess lands which the listers had neglected to designate in the grand list as being in that district it is obvious that all the land within that district which was owned by those persons living without the same, could not be included in that assessment. That would be a direct violation of the statute, which provides that all real estate shall be taxed in the district in which it is situated. Under those circumstances it was the duty of the prudential committee to include those lands in their assessment of this tax; and in making that assessment and apportionment of its value, we perceive no objections to the rule adopted by the court in their charge to the jury, and which the jury have found *196was pursued by the committee. The case of Adams v. Hyde, 27 Vt. 221, seems to be directly in point both as to the duty of the prudential committee in assessing those lands, and as to the mode or rule of assessment adopted by the court. Under the acts of 1847 and 1849 (Comp. Stat. 457, secs. 35, 36, 37), it is probable a different rule would be adopted, and the grand list held to be the conclusive guide, as power is given to the district, and the manner is prescribed by which the grand list can be corrected, and a valuation of the land in each district made, so that all the provisions of the act can be carried into effect by an assessment of the tax as the property of the district stands on the grand list; Fairbanks & Co. v. Kittridge, 24 Vt. 12 ; School Dist. v. Kittridge, 27 Vt. 651. In relation to this matter it is also to be observed that by that assessment the sum of twenty-five dollars and sixty-two cents was raised and voluntarily paid by those persons residing out of the district. Its effect was to lessen the taxes assessed against the plaintiff. He has, therefore, not been injured by the assessment of those lands. In such case there is no propriety in his setting up that matter in avoidance of the taxes which were assessed against his property. So far as that real estate is concerned, we think it was properly assessed. The same observations may be made in relation to the piece of land owned by Jared Bishop, which was designated by the listers as being in that district, when in fact it was without. If the grand list was not conclusive upon the prudential committee in one instance, it was not in the other. It was the duty of the committee to exclude that land from the assessment, for they could only assess lands lying within the district. In both instances the land and the name of the owner were set in the grand list, and the only duty of the committee was to ascertain what part of the land was in the district, and to apportion its value. In the former case they were to include the land in the assessment, and in the other to exclude it.
The case is different in relation to the seven acres of land owned by Josiah Southard, which, it is stated, the committee knew lay within the district. That land was properly excluded from the assessment, as it was wholly omitted from the grand list of that year by the listers. To have assessed that land, it would have been *197necessary for the prudential committee to have incorporated that land into the grand list, and to have appraised its value. To that 'extent it would have been making a new grand list and a new appraisal. It is not competent for the prudential committee of a school district to act as, or discharge the duties of listers or appraisers, and where the listers have neglected to set the land in the grand list to any one, it must necessarily be excluded from any assessment. The charge of the court to the jury in this particular, we think, was correct.
In relation to the Yanderhoff land the court properly admitted evidence showing that Vanderhoff owned no land in the district, and that the same land was owned by one Norton and assessed and taxed as his property. The fact that the identical land was placed in the grand list by the listers to two different persons will not avoid an assessment, when it is assessed as the property of one of them, who in fact was the owner.
This disposes of the various objections which were taken at the argument of this case to the assessment of this tax. In relation to this subject it is proper to observe that the statutes then in existence, and which existed until the acts of 1847 and 1849 were passed, rendered the duties of a prudential committee both responsible and difficult to perform. They were required to make legal assessments of taxes, yet the manner in which the assessment was to be made was not in many particulars definitely defined or provided for by statute. The committee in this instance seems to have pursued the only practical mode which could have been adopted to carry into effect the various provisions of the act; and as the case finds that they exereised a sound judgment and discretion in the matter, they are entitled to every reasonable intendment for their protection.
The judgment of the county court is affirmed.