This is an action of new impression. That is no reason, however, why it should not be maintained, if it is founded on legal principles ; but it is a reason why the grounds relied on for its support should be strictly examined.
The action is assumpsit against the town for money had and *601received by them to the use of the plaintiff. The ground is, not that the plaintiff was taxed for more property, or other property, than he was liable for, nor that the tax was laid for a purpose not within the scope of the authority of the town ; but that, through error of judgment, mistake of the law, or otherwise, the assessors forbore to assess one Mason and one Cheever, inhabitants of the same town, for money at interest, for which, as the plaintiff contends, they ought to have been taxed. The facts are stated, upon which it is contended that they ought to have been so taxed. But the court are of opinion that the question, whether those persons ought to have been taxed for a larger amount, cannot arise in this action, because, if the fact were so, it would' not enable the plaintiff to recover in this action.
It has often been held, that the omission to tax any particular individual, who may be liable, does not render the whole tax illegal and void ; and it would be scarcely possible to assess a valid tax, if it were otherwise. Williams v. School District in Lunenburg, 21 Pick. 81. Besides ; the assessors are not the agents of the town, so as to render the town responsible for their errors and mistakes, or even for their negligence. They are public officers, whose functions and duties are regulated by law ; and it is only for want of integrity or fidelity in the discharge of their official duties, that they themselves are liable. Rev. Sts. c. 7, § 44.
The plaintiff, therefore, has no ground to contend that, the tax was void, that he was not liable to be assessed, or that he was assessed for more property than he was liable for. But the gravemen of his complaint is, that other persons were not taxed enough, by means of which his rate was higher than it should have been. " This cannot be inquired into, in an action against the town for money had and received. The tax was rightfully assessed on him, and the money paid in due course of law. Besides ; as the amount alleged to be overpaid is not capable of being distinctly designated or ascertained by mathematical computation, it would impose on the jury the necessity of revis *602ing the valuation and taxation of the whole town, and re-adjusting the proportion which each inhabitant ought to pay. And if this can be done, in a common law action, at the suit of any one inhabitant, the same may be done at the suit of every other; a course of proceeding obviously impracticable. But we think it is only in case one has been taxed, who was not liable to taxation, or when an entire tax is void, and the amount of such void tax assessed to each inhabitant, and paid by the party complaining, is capable of being determined by arithmetical computation, that money had and received will lie to recover it back of the town. Torrey v. Millbury, 21 Pick. 64. The case of Thurston v. Little, 3 Mass. 429, cited in the argument as an authority for the maintenance of this action, was a case where the entire tax was illegal and void.
If a tax has been assessed and collected, under a vote of the town directing a tax to be assessed for a purpose not within the scope of the municipal authority of towns, the vote is unauthorized, the tax is void, and the money, thus compulsorily paid by the inhabitant, is required of him without legal authority, and the entire amount, paid by any one, is money which the corporation cannot retain ex cequo et bono ; and in such case assumpsit for money had and received will lie to recover it back.
But where an individual has been taxed too much, if he has complied with the law and put himself in a condition to assert his legal rights, he may claim an abatement ; and if his claim is not allowed, he may appeal to the county commissioners. If they decide against him, and such decision turns on any question of law,, and he deems it erroneous, he may take care to have the facts and the grounds of decision fully stated, in the form of exceptions, or otherwise, and thus bring the case to this court for decision.
Various other remedies may be resorted to, to -secure just and legal taxation. The law is strict in requiring that the whole valuation shall he seasonably laid before all the tax-paying inhabitants, in order that any omission, mistake or inequality, may be corrected, before the tax is collected. It is for the interest of the town, and of the inhabitants generally, that each inhabitant *603liable should be taxed, and to the extent of his liability; and therefore it must be presumed to be the inclination of assessors to impose rather than omit a tax, in case of doubt, leaving the individual aggrieved to raise the question, if he shall think fit. And the final remedy, if the inhabitants believe that their assessors are acting upon erroneous principles, is to elect others in their places.
Judgment for the defendants.