Upon the motion for a rehearing, the following points are urged by counsel for the defendant :
1. That the court below erred in not setting aside the verdict on motion. The next day after the verdict was rendered, the defendant moved the court for a new trial, for the reason that the verdict was against law and evidence, which motion was denied, and the defendant excepted. The ground of this objection is, that there *278was no testimony whatever before the court and jury proving or tending to prove that the defendant had, at the time of his examination before the justice, money or property, not exempt from sale for taxes, sufficient to pay the tax, as required by sec. 85, ch. 18, R. S. Section 82 of ch. 18, and the amendatory act, ch. 198, Laws of 1860, sec. 1; provide that if the defendant, upon appearing or being brought before the justice of the peace, shall refuse to answer all questions put to him touching his ability to pay such tax, the justice shall make an order requiring him to pay the same forthwith. The defendant here, upon his appearance before' the justice and being sworn, refused to answer all questions touching his liability in the suit, and thereupon the justice made the order required by the statute. Section 83 of ch. 18 provides, that the justice before whom such examination is held shall reduce the examination of the person arrested, and all witnesses produced and examined, to writing, and cause the same to be subscribed by the persons examined, and the same shall be filed with the clerk of the circuit court, and, in case a new trial is had in the circuit court, the examination so returned shall be read on such trial, and.either party may produce other proof on such trial. The proceedings in this case were conducted as required by law, and the examination of the defendant, subscribed by him and taken before the justice, and by which it appeared that he refused on oath to answer any and all questions that might be put to him, touching his liability in the suit, was filed with the clerk of the court, and read on the trial before the court and jury, and the defendant offered no other or further proof on such trial. This we think conclusive against the objection. The examination before the justice being evidence by statute on the trial of the appeal, and the defendant having neither offered himself as a witness nor produced other proof, the effect was the same as when he refused to answer before the justice. The facts *279were to be taken as conclusively established against him, that is, every fact which might have been so established had he submitted to a full and fair examination. His refusal to answer in the justice’s court was, under the statute, ah admission oh his part that he had at that time sufficient money.or property, not exempt from sale for taxes, to pay the tax; and when he chose to abide by the same refusal given in evidence on trial of the appeal, he renewed the admission on that trial that he had such money or property ; and the jury were fully justified in so finding the facts. This must be so, or otherwise the right of appeal given the defendant by statute would render every proceeding of the kind nugatory and fruitless,, which the legislature obviously did not intend. Before the justice, standing mute, when the defendant is required by law to answer, is to be regarded as proof of the facts against him. If on appeal the same refusal, when given in evidence, is not to have the same effect, the result would be that the order or judgment of the justice of the peace must in such cases always be reversed for want of evidence, since the defendant is not required to appear and submit to examination on trial of the appeal as before the justice, and he would certainly not do so voluntarily, when, by absenting himself or refusing to testify, judgment in his favor was sure to follow. It was to obviate this difficulty, no doubt, that the examinations before the justice are to be read on trial of the appeal, and we think it very clear, that they are to have the same effect as evidence,' unless other proof is produced.
2. It is insisted that the verdict is insufficient in form. This point was discussed in the former opinion, but the objection is now renewed on the ground that the question whether the defendant had sufficient money or property, not exempt from sale for taxes, to pay the tax at the túne of his examination before the justice, was not embraced in the issue, or averred by either party, and, *280if a fact, it never was or could Rave been snob until after the issue was made up, and the trial before the justice commenced. To this fact, not averred in the complaint, and, as said by counsel, not embraced in the issue, it is insisted that a general verdict is not responsive, and that a special finding by the jury was necessary. The correctness of this conclusion depends upon whether or not the counsel is correct in his premises. We think he is incorrect. We think whether the defendant, at the time of the examination before the justice, had sufficient money or property to satisfy or pay the tax, was a fact embraced in the issue, as much as any other fact to be investigated on the trial and found by the jury. The truth is, there was no issue, strictly and properly so called, made up in the case. This is apparent from an examination of the statutes. The Revised Statutes provide for nothing like pleadings or a formal issue to be made up by written averments on one side and denials on the other. The amendatory act of 1860, ch. 198, declares that the affidavit of the treasurer shall be deemed the complaint, but it prbvides for no answer, traverse or denial whatever on the part of the defendant; and, strictly speaking, there is no issue in the case, that is, no formal one. To ascertain what facts are to be proved, and so what facts are in issue, we are to look to the statute to see what are required in order to establish the defendant’s liability; and those facts, one and all, are to be considered as denied by him. That constitutes the issue presented at the trial, and upon that issue a general verdict against the defendant is decisive of all the facts, the same as if they had been formally alleged on one side and denied on the other. The case is not, therefore, like those sometimes arising, where it becomes necessary for the jury to find some fact or facts outside the formal issue joined between the parties, in order to justify the judgment. The jury here must be presumed to have found all the facts necessary to establish the liability of the defendant and to sustain the *281judgment, inasmuch, as those facts were all alike within the issue, and each one no less so than every other. And especially must this be so in the absence of any exception or alleged ground of error with respect to the instructions given by the court to the jury; for with regard to these it must be assumed that the jury were fully informed as to what facts they must fihd in order to authorize the verdict. v
3. Por a third point, the learned counsel calls our attention to a mistake in the former opinion respecting the construction of section 42, ch. 538, Laws of 1865. That mistake was in supposing that the latter clause of the section was applicable to any case where the "clerk of the board of supervisors should have reason to believe that the value returned by the assessor was below the true value of the property, and that he might institute an examination, etc., into the value. Upon recurring to the language, the mistake is apparent. The words “in .any such case,” in the latter clause, very clearly limit the power of the clerk to the class of cases specified in the first clause; and this brings up the question, not before supposed to be involved, whether the return here was sufficient to authorize the clerk to institute the examination. The language of the return and of the statutory requirement in section 37 of the same act, are stated in the former opinion. We are all of opinion that the words contained in the return are fully equivalent to those found in the statute, and that a literal compliance with the statute was not necessary. Other words meaning the same thing may be substituted without risk of rendering the proceeding wholly void. As suggested by the counsel, the assessor might with propriety, no doubt, have made the statutory entry, “refused to swear;” but he chose to represent the exact facts, and so entered “refused to answer questions of the assessor after being sworn.” It is manifestly immaterial, under the. statute, whether the defendant refused to take the oath, or, having taken it, refused to answer any *282questions which, might be put to him. In either case he “refused to swear,” within the meaning of the statute, and the return of the assessor was sufficient. A further argument in support' of this point is, that we may reasonably infer, from the entry actually made, that the defendant made out his list, and either took the oath, or was ready to take it, and that the assessor was not satisfied of the truth of his statement, and swore him generally to answer questions, and he refused to answer. But this inference is conclusively rebutted by the other entry found in the return and set opposite the property, and which was, “listed by assessor.” See sections 84, 35 and 37. This entry shows that the defendant did not make out his list, or take the oath, or offer to, and that he refused to list, as well as to swear, thus giving jurisdiction to the clerk of the board of supervisors upon both grounds specified in section 42.
4. The fourth and last point is one which was partially considered in the former opinion. It is, whether the fifty per centum added by the clerk of the board of supervisors is to be presumed to be the penalty prescribed by the first clause of section 42, or whether we are to infer that it was the increased value of the property as found by-him upon examination instituted under the last clause. The bill of exceptions, which contains all the evidence, is entirely silent upon the point. There was no testimony either one way or the other respecting it. And, as indicated by the former opinion, we think that the fifty per centum mentioned in the first clause is a penalty, which can be imposed only in the due course of judicial prosecution, and consequently that the clerk had no lawful or constitutional authority to add itxto the value of the property returned. The only valid authority conferred upon the clerk is to inquire into, and add to, the value of the property under the last clause. The question then comes to this: Are we to presume that the clerk added the fifty per centum in violation of law and of Ms duty, when, upon the facts *283presented, being simply that fifty per centum was added, it appears that the same might have been added lawfully and in the clear performance of duty? Acting upon the principle' which governs in all such cases, that tó impeach the acts of a public officer they must be shown, and cannot be presumed, to have been unauthorized, our conclusion must still be the same as when this cause was decided. If the fifty per centum was added under the first clause of the section, and so illegally, it was an easy matter for the defendant to have shown it, and the burden of doing so was upon him. He did not show it; and since the fact may have been that it was added by the clerk under the last clause, which was legal, we are bound to presume that it was so added, in accordance with the principle above stated.
By the Oov/rt. — Motion denied.