The opinion of the Court was pronounced by
Hutchinson, J.
This cause has been argued upon the exceptions, taken and allowed in the county court; also upon a motion in arrest, there overruled. Both centre in one general question, whether this action can be maintained under all its circumstances. And the charge of the court in reference to the kind of action, and the point of malice, present the same questions as the motion in arrest.
We are led to consider the duty and liability of listers, so far as now called in question. It is their duty to collect the lists of the ratable inhabitants, and put the same into one grand list, including all the polls of persons residing in town, liable to be rated ; and all the property for which rates are to be paid. They are to [504]*504make assessments of mechanics and professional men, millers, merchants, &c. and add such assessment to the list. When they have completed the grand list, they are to return it to the town clerk, and there it remains to be used in making up all rate bills for the year. In all cases- of discretionary assessments,-an appeal is given by the statute'to the selectmen and civil authority. With regard to the list upon' items of property in general, it must stand as the listers place it,- and be a guide for the select-men in the year’s taxation. They are not obliged to proceed till they are in difficulty, in doubtful casesand very few cases arise about the ownership of property to embarrass the listers. In the discretionary assessments their proceedings are in a measure judicial; and the remedy for any error in their judgement, is by appeal as before mentioned.
If they enlist a man who is not liable to enlistment in that town, or put into the list property clearly not taxable,- they do- it upon their own responsibility,- and ate liable for the injury any person may sustain by it. And, in such a case, there need be no allegation, nor proof, of malice, nor want of probable cause. It isa wrongful act, and they, who do it, must bear the consequence. The person injured must not be left without remedy. The cases, in which malice and the want of probable cause must be shown, are of a different character. They are cases where legal process is used, which repels all presumption of wrong, and is itself a shield to those who use it, till malice and the want of probable cause are shown.
With regard to the residence of the plaintiff, it appears, that he had lately removed from Chester to Rockingham; and the lis-ters chose to treat him as being still an inhabitant of Chester.— The verdict of the Jury has settled that question. The charge of the court was very favorable to the defendants upon this point. The charge was, that the defendants would not be liable, if they, at the time they made the list, acted with reasonable discretion and impartiality, and had good reason to believe, that the plaintiff did not intend to permanently change his residence. Had the verdict been in favor of the defendants, the plaintiff might, with some plausibility, have excepted to this charge. But a verdict for the plaintiff, after this charge, fully establishes the plaintiff’s residence in Rockingham. This settles the point, that he was not liable to be enlisted as of Chester. He was obliged, by law, to give in his list in Rockingham; and, if he neglected it, was liable to be twofolded there.
If the defendants have done that, as listers, which renders [505]*505them liable to the plaintiff, are they liable to this action of the case, or should the action be trespass ?
There is no reason, in this state, for any distinction between the two actions ; yet it is ob^pavedyis it comes to us in the books’; and we must treat it as a part of the law» Yet, in a case where the distinction is but a doubtful shade, I would not drive.the party* round to another a'ction.
The legal distinction leads to this inquiry, merely: was the in* jury complained of direct and immediate, or only consequential? if the former, the action should be trespass : If the latter, this ac* tion is correctly brought-.
If A roll a rock into the highway, and it injures B, by striking him or his property, B has his action against A to recover his damages ; but it must be an action of trespass, for the injury is direct; and it makes no difference whether the rock hits B, at the first bound, or bounds fifty times before it hits. But, if A roll the rock into the same, place when B is not there, and B afterwards passes, and sustains such an injury from this rock, that any action will lie against A, it must be an action on the case ; because the injury is not direct, but consequential.
The defendants have cited the case' of Frederic Ware vs. Smith and Conant, once decided in Windsor county. There’ ■Smith and Conant were not the listers to make out the grand list, but the committee who made up a rate bill for a society tax, to pay their minister, and procured a warrant for its collection, and delivered both to the collector, who took the plaintiff’s property» The plaintiff brought his action <jf trespass against Smith and Co-nant, and he recovered, because he was not liable to the tax, not being a member of the society ; and Smith and 'Conant, by putting his name into the rate bill and attaching the warrant, did the first wrongful act, and made it the duty of the collector to do what his precept commanded. The doings of Smith and Conant acted directly upon Ware, and the collector, coming in to aid the motion of the injurious weapons they aimed at Ware, did not change the nature of their liability. They might well be said to have com* mitted the trespass which they caused the collector to commit upon Ware.
The defendants cite also the case oí Alexander vs. Wilmarth, in this county-: Wilmarth, acting as a justice of the peace, had issued an execution against Alexander, by which he had be’eti pursued in his person, or property. He brought his action, relying upon showing Wilmarth not to be in office at the time he issued the execution: It was decided that trespass was the proper action. Though the officer went with the execution, vet [506]*506Wihnarth gave the impetus which kept it moving, till it hit Alexander, as ho complained. The plaintiffs action failed, however, in that case, it appearing that Wilmarth was in office at the time.
. If, in the case before us, the selectmen, who made out the rata bills, and procured the warrants, had done the wrong so as to be liable at all to the plaintiff, the action against them must have been trespass. Their wrong proceedings wbuld have acted, through the agency of the collector, directly upon the plaintiff, and occasioned the iujury of which he complains. And the tendency of this wrong to the injury of the plaintiff'would have been of no uncertain character. It would have made the duty of the collector imperative ; and that, if performed, must have injured the plaintiff. But, as it was, the selectmen had a plain duty to perform. When the treasurer’s warrant was presented, and the town had voted their regular taxes, the selectmen would have been culpable, not to have made out rate bills for the state and town and school taxes, and delivered the same to the collector for collection ; and they must have made them on such a grand list as the listers had returned to the Town Clerk.
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The opinion of the Court was pronounced by
Hutchinson, J.
This cause has been argued upon the exceptions, taken and allowed in the county court; also upon a motion in arrest, there overruled. Both centre in one general question, whether this action can be maintained under all its circumstances. And the charge of the court in reference to the kind of action, and the point of malice, present the same questions as the motion in arrest.
We are led to consider the duty and liability of listers, so far as now called in question. It is their duty to collect the lists of the ratable inhabitants, and put the same into one grand list, including all the polls of persons residing in town, liable to be rated ; and all the property for which rates are to be paid. They are to [504]*504make assessments of mechanics and professional men, millers, merchants, &c. and add such assessment to the list. When they have completed the grand list, they are to return it to the town clerk, and there it remains to be used in making up all rate bills for the year. In all cases- of discretionary assessments,-an appeal is given by the statute'to the selectmen and civil authority. With regard to the list upon' items of property in general, it must stand as the listers place it,- and be a guide for the select-men in the year’s taxation. They are not obliged to proceed till they are in difficulty, in doubtful casesand very few cases arise about the ownership of property to embarrass the listers. In the discretionary assessments their proceedings are in a measure judicial; and the remedy for any error in their judgement, is by appeal as before mentioned.
If they enlist a man who is not liable to enlistment in that town, or put into the list property clearly not taxable,- they do- it upon their own responsibility,- and ate liable for the injury any person may sustain by it. And, in such a case, there need be no allegation, nor proof, of malice, nor want of probable cause. It isa wrongful act, and they, who do it, must bear the consequence. The person injured must not be left without remedy. The cases, in which malice and the want of probable cause must be shown, are of a different character. They are cases where legal process is used, which repels all presumption of wrong, and is itself a shield to those who use it, till malice and the want of probable cause are shown.
With regard to the residence of the plaintiff, it appears, that he had lately removed from Chester to Rockingham; and the lis-ters chose to treat him as being still an inhabitant of Chester.— The verdict of the Jury has settled that question. The charge of the court was very favorable to the defendants upon this point. The charge was, that the defendants would not be liable, if they, at the time they made the list, acted with reasonable discretion and impartiality, and had good reason to believe, that the plaintiff did not intend to permanently change his residence. Had the verdict been in favor of the defendants, the plaintiff might, with some plausibility, have excepted to this charge. But a verdict for the plaintiff, after this charge, fully establishes the plaintiff’s residence in Rockingham. This settles the point, that he was not liable to be enlisted as of Chester. He was obliged, by law, to give in his list in Rockingham; and, if he neglected it, was liable to be twofolded there.
If the defendants have done that, as listers, which renders [505]*505them liable to the plaintiff, are they liable to this action of the case, or should the action be trespass ?
There is no reason, in this state, for any distinction between the two actions ; yet it is ob^pavedyis it comes to us in the books’; and we must treat it as a part of the law» Yet, in a case where the distinction is but a doubtful shade, I would not drive.the party* round to another a'ction.
The legal distinction leads to this inquiry, merely: was the in* jury complained of direct and immediate, or only consequential? if the former, the action should be trespass : If the latter, this ac* tion is correctly brought-.
If A roll a rock into the highway, and it injures B, by striking him or his property, B has his action against A to recover his damages ; but it must be an action of trespass, for the injury is direct; and it makes no difference whether the rock hits B, at the first bound, or bounds fifty times before it hits. But, if A roll the rock into the same, place when B is not there, and B afterwards passes, and sustains such an injury from this rock, that any action will lie against A, it must be an action on the case ; because the injury is not direct, but consequential.
The defendants have cited the case' of Frederic Ware vs. Smith and Conant, once decided in Windsor county. There’ ■Smith and Conant were not the listers to make out the grand list, but the committee who made up a rate bill for a society tax, to pay their minister, and procured a warrant for its collection, and delivered both to the collector, who took the plaintiff’s property» The plaintiff brought his action <jf trespass against Smith and Co-nant, and he recovered, because he was not liable to the tax, not being a member of the society ; and Smith and 'Conant, by putting his name into the rate bill and attaching the warrant, did the first wrongful act, and made it the duty of the collector to do what his precept commanded. The doings of Smith and Conant acted directly upon Ware, and the collector, coming in to aid the motion of the injurious weapons they aimed at Ware, did not change the nature of their liability. They might well be said to have com* mitted the trespass which they caused the collector to commit upon Ware.
The defendants cite also the case oí Alexander vs. Wilmarth, in this county-: Wilmarth, acting as a justice of the peace, had issued an execution against Alexander, by which he had be’eti pursued in his person, or property. He brought his action, relying upon showing Wilmarth not to be in office at the time he issued the execution: It was decided that trespass was the proper action. Though the officer went with the execution, vet [506]*506Wihnarth gave the impetus which kept it moving, till it hit Alexander, as ho complained. The plaintiffs action failed, however, in that case, it appearing that Wilmarth was in office at the time.
. If, in the case before us, the selectmen, who made out the rata bills, and procured the warrants, had done the wrong so as to be liable at all to the plaintiff, the action against them must have been trespass. Their wrong proceedings wbuld have acted, through the agency of the collector, directly upon the plaintiff, and occasioned the iujury of which he complains. And the tendency of this wrong to the injury of the plaintiff'would have been of no uncertain character. It would have made the duty of the collector imperative ; and that, if performed, must have injured the plaintiff. But, as it was, the selectmen had a plain duty to perform. When the treasurer’s warrant was presented, and the town had voted their regular taxes, the selectmen would have been culpable, not to have made out rate bills for the state and town and school taxes, and delivered the same to the collector for collection ; and they must have made them on such a grand list as the listers had returned to the Town Clerk. If any of the persons enlisted had moved out of town, the selectmen could have taken no notice of that. Everyman must be listed in the town where be lives at the time of taking the list, and must pay the taxes assessed upon that list, let him live where he may. The listers, then, have done all the wrong. They have made it the duty of the selectmen to do just as they have done 3 that made it the duty of the collector to do as he has done : and the result is, that the plaintiff has been compelled to pay a large sum of money, and this compulsion all originated in the wrongful proceedings of the defendants. Still, the question remains, was the injury to the plaintiff immediate and direct, or merely consequential ?
While the rock lay in the highway, in the case above stated, it was at rest and could hurt no persons, till they should come along, and it was not certain they ever would come. But, when B came and was injured, case was the proper remedy against the person who placed the rock there. So, when the defendants had made out the grand list, and put the plaintiff into the same wrongfully", and lodged the same with the town clerk, it rested there, and would injure no persons, till they should come where it was, and it should be used in making up rate-bills, it was not certain that any persons would thus come along 3 that any rate-bills would be made from it. And when taxes were laid, and it became the duty of the selectmen- to make out rate-bills, the indirect, consequence of the defendants’ listing the plaintiff, was, that it occasioned the selectmen and collector, with perfect, innocence on their [507]*507part, to inflict an injury upon the plaintiff Even if the selectmen and collector were bound to notice who lived in town at the time of taking the list, (which we would not even intimntej that would make no difference in this case, for the plaintiff owned property in Chester liable to be taxed, and gave in his list of the same : and it is for the insertion of other property not liable to be taxed that the plaintiff now complains.
Bradley and Kellogg, for the plaintiff.
Everett and J. P, Williams, for the defendants.
The defendants’ counsel have urged the hardship that the defendants should be liable to the plaintiff, when the money collected of him has been paid to the town ; also, that the action should be brought against the town ; the action for money had and received. These suggestions may be noticed in conjunction. 1. The law gives a remedy to the party injured, whether the party injuring has gained or lost by the transaction. 2. If the town are liable at all, it could only be for the money by them received and retained, unless they had neglected to retain the part due to the state, after notice of the plaintiff’s claim. If there are two-folds as there may be, and as it is said there were in this case, the list-ers have a share which never goes to the town. For this the listers only could be liable to the plaintiff in any event whatever. Besides, we know of no law to prevent the plaintiff’s calling directly upon those, who have done the injury, without regard to the question, whether the money is in their possession, or has gone to the various obiects for which the several taxes were assessed.
The Court consider that the defendants are liable upon such facts as the jury must have found, and that case is the proper remedy ; and, therefore, the judgement of the county court must be affirmed.