The opinion of the court was delivered by
Peck, J.
The action is trespass for two oxen. The defendant in his second special plea justifies under two rate-bills and warrants against the plaintiff; one a town tax voted and assessed on the gran# list of 1862, the other a state tax for the same year assessed upon the same grand list. The plaintiff in his replication traverses the existence of such list of the plaintiff as is alleged in the defendant’s plea, and also traverses the rate-bills and warrants, upon which issue to the jury is joined.
1. To prove that the plaintiff had such grand list the defendant introduced the grand list of the town for 1862, in which it appeared that the plaintiff’s list was as alleged in the plea. No question was made by the plaintiff at the trial but that the grand list was regular and valid upon the face of it, and no question was raised in relation to it except the plaintiff claimed that as the year 1862 was not a year for the general appraisal of real estate, it was incumbent on the defendant to produce the grand list of the year of the last general appraisal of real estate, so as to show that the real estate of the plaintiff was duly appraised and set in the list. This the defendant was not bound to dp. The law requires a grand list [226]*226to be made each year, and the grand list of 1862 was the list on which the taxes in question were to be assessed. It being made by sworn officers appointed for that purpose, and being regular on the face of it, it is to be presumed to be correct until the contrary is shown. The list of the last preceding year of appraisal, had it been produced, would not necessarily have shown whether the plaintiff’s list of 1862 was correctly made up or not; since changes often take place in relation to real estate intervening between the years of appraisal, which make it the duty of listers to make corresponding changes in the list; as where there has been a transfer of real estate, it must be set to the new owner ; and when a portion of a parcel of land has been conveyed, the former appraisal is to be justly apportioned in making up the list, between the grantee of such portion and the former proprietor. So when at the regular appraisal any real estate is by accident, mistake or otherwise, omitted, it is made the duty of listers for any succeeding year, to appraise and set the same in the list to the owner. The grand list of 1862 was sufficient proof of this allegation in the plea.
2. In proof of the other allegation traversed, the defendant introduced the two rate-bills and warrants set forth in the plea. No objection was made in the county court, and none is made here, to the rate-bill and warrant for the town tax. No objection is made to the rate-bill for the state tax. But in relation to the state treasurer’s warrant for the collection of that tax, it appears from allegations in the plea not traversed, and from the exceptions taken together, that A. H. Gross was the collector for 1862, up to November 30th, 1862, when he died, and that the defendant was elected collector to fill the vacancy January 8th, 1863 ; that on the 28th January, 1863, the selectmen delivered to the defendant for collection the rate-bill and warrant for the collection of the town tax, which had previously been in the hands of Gross for collection, and at the same time delivered to the defendant for collection the rate-bill and state treasurer’s warrant for the state tax. The treasurer’s warrant is dated January 1st, 1863. The plaintiff insisted in the county court that the defendant could. not justify under the state treasurer’s warrant because the same was not directed to him, but to A. H. Gross. The direction in the warrant is, “2b A. H. Gross, constable and collector [227]*227■of the town of Brownington .” The only question raised in the county court was whether the name of A. H. Gross being in the direction ■of the warrant instead of the name of the defendant, rendered it void in the hands of the defendant as an authority to him to collect the tax. Is it necessary to the validity of a warrant for the collection of taxes, that it should be directed to the collector by name; or is a direction to the first constable or collector of the town sufficient? The statute provides that “when the general assembly shall impose a state tax, the treasurer of the state shall immediately issue his warrant to the first constable of each town, subject to the payment of such tax, commanding him,” &c. The statute does not in terms require the name to be inserted. The form given in the statute indicates the insertion of the name, but on the other hand, if the statute is to be interpreted from analogy to the provisions relating to the direction of writs, executions and other processes, it would seem that a general direction by designation of the office of first constable or collector is sufficient. No very strong inference can be drawn from sec. 37, ch. 15, CornjS1. St., requiring town clerks to transmit to the state treasurer the names of first constables, that it is for the purpose of enabling the treasurer to insert the name in the warrant, since such information is necessary to enable the treasurer to transmit papers to such constables, and to issue extents against delinquent constables. The general power of a first constable to collect taxes, is, under the statute, incident to the office, and a different principle applies from that which would be applicable if the whole authority was derived by special appointment from the treasurer. We think in the absence of any more explicit requirement of the statute, we are not warranted in holding, contrary to the general principle applicable to other process, that the omission of. the name in the direction renders a warrant for the collection of taxes void. But it is said if the warrant would be good with no name inserted, it is rendered bad in the defendant’s hands by the insertion of the name of Gross. But if no name need be inserted, the insertion of the name of a person deceased we think cannot vitiate it. But other objections not made in the' county court have been urged and discussed, which perhaps ought to be disposed of in reference to a future trial. It is insisted that the warrant is void for the reason that [228]*228when issued the defendant was not collector, and the office was vacant. If this is so the same rule must apply to writs and other process. Formerly in this state writs were directed to the sheriff of the county or constable of the townt naming the county and town. I think it was never held that a constable could not serve such writ if it issued prior to his appointment, or when the office. was vacant. It is sufficient that the officer is such at the time he executes the writ. Hayes v. Drake, 6 Gray, 387, cited in argument, is a direct decision against the plaintiff on this point.
But in the opinion of the court this rate-bill and warant, in connection with the facts in the case, come within the scope of the statute, ch. 81, p. 470, Comp. St., providing in case of the decease of a collector, for the collection of taxes by his successor, by virtue of the same warrant issued to the former collector, and without any new direction in the warrant. It is true that if the statute is taken literally it would be confined to rate-bills and warrants that had been committed to such former collector.
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The opinion of the court was delivered by
Peck, J.
The action is trespass for two oxen. The defendant in his second special plea justifies under two rate-bills and warrants against the plaintiff; one a town tax voted and assessed on the gran# list of 1862, the other a state tax for the same year assessed upon the same grand list. The plaintiff in his replication traverses the existence of such list of the plaintiff as is alleged in the defendant’s plea, and also traverses the rate-bills and warrants, upon which issue to the jury is joined.
1. To prove that the plaintiff had such grand list the defendant introduced the grand list of the town for 1862, in which it appeared that the plaintiff’s list was as alleged in the plea. No question was made by the plaintiff at the trial but that the grand list was regular and valid upon the face of it, and no question was raised in relation to it except the plaintiff claimed that as the year 1862 was not a year for the general appraisal of real estate, it was incumbent on the defendant to produce the grand list of the year of the last general appraisal of real estate, so as to show that the real estate of the plaintiff was duly appraised and set in the list. This the defendant was not bound to dp. The law requires a grand list [226]*226to be made each year, and the grand list of 1862 was the list on which the taxes in question were to be assessed. It being made by sworn officers appointed for that purpose, and being regular on the face of it, it is to be presumed to be correct until the contrary is shown. The list of the last preceding year of appraisal, had it been produced, would not necessarily have shown whether the plaintiff’s list of 1862 was correctly made up or not; since changes often take place in relation to real estate intervening between the years of appraisal, which make it the duty of listers to make corresponding changes in the list; as where there has been a transfer of real estate, it must be set to the new owner ; and when a portion of a parcel of land has been conveyed, the former appraisal is to be justly apportioned in making up the list, between the grantee of such portion and the former proprietor. So when at the regular appraisal any real estate is by accident, mistake or otherwise, omitted, it is made the duty of listers for any succeeding year, to appraise and set the same in the list to the owner. The grand list of 1862 was sufficient proof of this allegation in the plea.
2. In proof of the other allegation traversed, the defendant introduced the two rate-bills and warrants set forth in the plea. No objection was made in the county court, and none is made here, to the rate-bill and warrant for the town tax. No objection is made to the rate-bill for the state tax. But in relation to the state treasurer’s warrant for the collection of that tax, it appears from allegations in the plea not traversed, and from the exceptions taken together, that A. H. Gross was the collector for 1862, up to November 30th, 1862, when he died, and that the defendant was elected collector to fill the vacancy January 8th, 1863 ; that on the 28th January, 1863, the selectmen delivered to the defendant for collection the rate-bill and warrant for the collection of the town tax, which had previously been in the hands of Gross for collection, and at the same time delivered to the defendant for collection the rate-bill and state treasurer’s warrant for the state tax. The treasurer’s warrant is dated January 1st, 1863. The plaintiff insisted in the county court that the defendant could. not justify under the state treasurer’s warrant because the same was not directed to him, but to A. H. Gross. The direction in the warrant is, “2b A. H. Gross, constable and collector [227]*227■of the town of Brownington .” The only question raised in the county court was whether the name of A. H. Gross being in the direction ■of the warrant instead of the name of the defendant, rendered it void in the hands of the defendant as an authority to him to collect the tax. Is it necessary to the validity of a warrant for the collection of taxes, that it should be directed to the collector by name; or is a direction to the first constable or collector of the town sufficient? The statute provides that “when the general assembly shall impose a state tax, the treasurer of the state shall immediately issue his warrant to the first constable of each town, subject to the payment of such tax, commanding him,” &c. The statute does not in terms require the name to be inserted. The form given in the statute indicates the insertion of the name, but on the other hand, if the statute is to be interpreted from analogy to the provisions relating to the direction of writs, executions and other processes, it would seem that a general direction by designation of the office of first constable or collector is sufficient. No very strong inference can be drawn from sec. 37, ch. 15, CornjS1. St., requiring town clerks to transmit to the state treasurer the names of first constables, that it is for the purpose of enabling the treasurer to insert the name in the warrant, since such information is necessary to enable the treasurer to transmit papers to such constables, and to issue extents against delinquent constables. The general power of a first constable to collect taxes, is, under the statute, incident to the office, and a different principle applies from that which would be applicable if the whole authority was derived by special appointment from the treasurer. We think in the absence of any more explicit requirement of the statute, we are not warranted in holding, contrary to the general principle applicable to other process, that the omission of. the name in the direction renders a warrant for the collection of taxes void. But it is said if the warrant would be good with no name inserted, it is rendered bad in the defendant’s hands by the insertion of the name of Gross. But if no name need be inserted, the insertion of the name of a person deceased we think cannot vitiate it. But other objections not made in the' county court have been urged and discussed, which perhaps ought to be disposed of in reference to a future trial. It is insisted that the warrant is void for the reason that [228]*228when issued the defendant was not collector, and the office was vacant. If this is so the same rule must apply to writs and other process. Formerly in this state writs were directed to the sheriff of the county or constable of the townt naming the county and town. I think it was never held that a constable could not serve such writ if it issued prior to his appointment, or when the office. was vacant. It is sufficient that the officer is such at the time he executes the writ. Hayes v. Drake, 6 Gray, 387, cited in argument, is a direct decision against the plaintiff on this point.
But in the opinion of the court this rate-bill and warant, in connection with the facts in the case, come within the scope of the statute, ch. 81, p. 470, Comp. St., providing in case of the decease of a collector, for the collection of taxes by his successor, by virtue of the same warrant issued to the former collector, and without any new direction in the warrant. It is true that if the statute is taken literally it would be confined to rate-bills and warrants that had been committed to such former collector. We think by a reasonable and proper construction of the statute in view of the object intended to be accomplished, it should embrace a case like this, where the treasurer obviously acted, in issuing the warrant, on the faith of the information furnished him by the town clerk, without knowing of the decease of the former collector, although the collector deceased before the warrant reached him and before it issued. If we adopt any more limited construction and adhere to the letter of the statute, every case must be excluded unless the “tax-bill” actually came to the hands of the former collector in his life-time, even if he had received the treasurer’s warrant. This would be too narrow a construction.
This warrant being good in the hands of the defendant, the issue joined on the replication to the second special plea was proved by the defendant, and the court ought to have directed a. verdict for him. If a defendant succeeds upon an issue of fact joined on one of several pleas going to the whole action, he is entitled to a verdict and judgment,'irrespective of the result of any other issue joined on any other line of pleading. One defence is sufficient for one cause of action. It is insisted that as it appeared that the defendant seized and sold the property on a state school tax, as well as on the [229]*229two rate-bills and warrants mentioned in the second special plea, for the purpose of satisfying the three taxes, and as the state school tax had no warrant annexed to it, and as the defendant from the avails of the sale satisfied all the taxes, the defendant was a trespasser ab initio, and the justification fails. The plaintiff cannot avail himself of these facts in answer to the second special plea without presenting them in his replication. They are outside of the issue. Whether he could do so under the first special plea, which justifies under the three rate-bills, it is not necessary to decide. But the question having been fully argued as to the effect of these facts if properly presented, it is not improper that the court should express an opinion upon it, as it may arise on a future trial.
The plaintiff claims that the officer had no authority to proceed to take property by virtue of the state school tax for want of a warrant. The defendant insists that no warrant is required for the collection of such tax. The statute provides that when any town u shall impose?’ a tax, the selectmen shall make out a tax-bill and cause a warrant of a justice of the peace to be annexed. It can hardly be said that the state school tax is in strictness imposed by the town. It is not voted by the town, but is assessed by the officers of the town. The same may be said of the highway tax; but as to that, the statute expressly requires the selectmen to assess the tax and annex a warrant. There is no law requiring the state treasurer to issue his warrant for the collection of the state school tax, and none in express terms requiring such duty of the selectmen, unless such tax can be said to be imposed by the town. It is, however, provided by sec. 68, p. 153, Comp. St., that “the selectmen of each town shall annually, previous to the first day of January, assess a tax of nine cents on the dollar of the list of such town, to be collected and paid over to the treasurer of the town previous to the first day of March succeeding, in the same manner that other town taxes are collected” &c. Taking these provisions together, in our opinion the fair intendment is that the selectmen shall annex a warrant as in case of a tax voted by the town. It is not reasonable to suppose the legislature intended to dispense with a warrant in the single case of the state school tax, and require it in all other cases. It is difficult to see how the state school tax can be collected in the same manner as other [230]*230taxes, without a warrant, especially as the collector is expressly required, in case of commitment for taxes, to leave a copy of his warrant with the jailor. The defendant, therefore, cannot justify under that rate-bill.
The question then is, what is the effect of this upon the defendant’s justification? When an officer acts and justifies under several processes, some of which are valid and some invalid, he is liable if it appears that, to the injury of the plaintiff, he has done more than he was justified in doing by the valid processes ; otherwise he is not liable. This proposition rests on reason, justice, principle and authority. This is the result of the authorities cited. Without resorting to the allegations in the defendant’s pleas, there is nothing in the exceptions showing that the defendant seized or sold more property than he was justified in taking and selling under the town and state taxes. These two taxes amount to $35.51, The state school tax is $2.46. The defendant’s pleas allege that the oxen sold for $77., and that the taxes and costs amount to $46.33. If the defendant was justified in taking the whole property by virtue of the valid processes, and proceeded under the three processes and sold more than he was justified in selling to satisfy the two valid processes and costs thereon, he is liable for such excess; whether liable beyond that, it is not necessary now to decide. Treating the facts as all before the court by appropriate pleadings, there is' nothing in the case showing any such excess as would warrant the court in directing a verdict for the plaintiff on that ground.
But it is insisted on the part of the plaintiff that the fact of the application of a portion of the money realized by the sale to satisfy the state school tax, makes the defendant a trespasser ab initio, and defeats the justification. But such is not the legal effect. In order to make the defendant a trespasser ab initio, the proceedings being regular down to and including the sale, the wrongful act relied on for that purpose must be an act relating to the property in question. The misapplication of a portion of the money arising from the sale will not make the defendant a trespasser in relation to the property sold, more especially where there is no intentional wrong. To give to such act the effect claimed would be carrying the doctrine of trespass ab initio to an unreasonable if not to an absurd extent. An [231]*231officer who sells property upon an execution cannot be made a trespasser ab initio for misapplying a surplus of money in his hands which it is his duty to pay over to the execution debtor. To make the officer a trespasser ab initio, the wrongful act must be done to the property itself, — not to the fund realized from a legal sale.
As the pleadings stand the court ought to have directed a verdict for the defendant. Treating all the facts and evidence as in the case upon appropriate pleadings, it was, to say the least, error to direct a verdict for the plaintiff.
Judgment reversed, and new trial granted.