#### Samuel Withington *versus*Daniel Eveleth.

*Jan. 1st,*1829, *in Suffolk.*

The power given to a town by *St.*1789, *c.*19, § 2, [Revised Stat. *c.*28, § 24,] to determine and define the limits of school districts, can be executed only by a geographical division of the town.

Where in attempting to define a school district, the town directed that certain peisons named should compose the district, (the probable intention of the town that the lands occupied by those persons should form the district not being expressed in the town records,) it was *held,*that the limitation of the district was merely personal, and therefore invalid.

Assessors are liable in trespass for assessing and collecting by distress a tax on a person as belonging to such supposed school district; this not being one of the cases in which by *St.*1823, *c.*138, § 5, assessors are responsible only for their own integrity and fidelity.

Such action may be brought against one or more of the assessors.

Trespass for taking the plaintiff’s cow. Plea, the general ssue, accompanied with a brief statement setting forth that the defendant was an assessor of the town of Stow, that the plaintiff was taxed as belonging to the northwest school district his proportion of a school district tax, and that the cow was dis-trained by the collector of taxes for the plaintiff’s tax.

On the trial in the Common Pleas, before *Strong*J., the defendant offered in evidence a copy from the records of Stow defining the school districts ; by which it appeared, that in 1805 the town directed that certain individuals (simply naming them) should constitute the respective school districts, and that “ all other persons belonging or residing or that might come to reside in any of the districts should be subject to the laws and rules of their respective districts.”

The judge instructed the jury, that the records did not show a sufficient and legal laying out and assignment of the school district in question.

The defendant also urged that the action should have been brought against the town, and not against an assessor ; who by *St.*1823, c. 138, § 5, is responsible only for his own integrity and fidelity. But the judge instructed the jury that the statute did not apply to this case.

The defendant filed exceptions to these instructions.

*Fletcher*and *Hosmer*supported the exceptions.

*Hoar*and Keyes, for the plaintiff.

*112The opinion of the Court was afterwards drawn up by

Parker C. J.

We are all satisfied that the power given - to towns by *St.*1789, c. 19, § 2, [Revised Stat.' c. 23, § 24,] to determine and define the limits of school districts, can be executed only by a geographical division of the town for that purpose. There having been no such proceedings in regard to the supposed district for which the tax was assessed, there was no LawAif assessment.

The committee appointed by authority of the town to determine and define the limits of the districts, made an unfortunate mistake in the manner of executing- this trust. They ran no lines and established no boundaries, but merely mentioned and described the persons of whom the district was to be composed. They probably intended that the lands occupied by these persons should be included within the district, but their intention is not matter of record, and according to the terms of their report, their limitation is merely personal, and the district would fluctuate with the change of residence of the persons mentioned. This is altogether against the spirit, as well as the letter of the act, and indeed of all the acts relating to this subject.1

It was suggested, that the action would not lie against one assessor alone ; but as the warrant given to the collector was without authority, those who issued it were trespassers and are severally as well as jointly answerable.

This case does not fall within the purview of *St.*1823, c. 138, § 5,2 which provides indemnity for assessors when required to assess the tax by the constituted authorities of any town, district, parish or religious society, for here there were no constituted authorities, there being no school district; so that if such a corporation comes within the description in this statute, still for want of a lawful establishment no power could be communicated.3

*Judgment of C. C. P. affirmed.*

1

 See *Perry*v. *Dover,*12 Pick. 206: *Taft*v. *Wood,*14 Pick. 367; *Clark*v. *Great Barrington,*11 Pick. 260.

2

 See Revised Stat. c. 7, § 44.

3

 See Revised Stat. c. 7, § 44; *Little*v. *Merrill,*10 Pick. 543; *Taft*v. *Wood,*14 Pick. 362; *Gage*v. *Currier,*4 Pick. 399, 405; *Allen*v. *Metcalf,*17 Pick. 208; *Taft*v. *Metcalf,*11 Pick. 456.