Shaw v. Inhabitants of Becket. the damages would be properly given to an extent commensurate with the value of the property illegally taken. But if the party waives the tort, and sues in assumpsit for money had and received, the claim for damages is necessarily limited to the money actually received by the defendant, as avails of the property wrongfully taken. 2 Greenl. Ev. § 117, and cases there cited. This is the general rule. Does it vary it, that from the peculiarity of the case no remedy in trover or trespass lies as against any body? not against the collector, because his warrant is sufficient authority for him; nor against the assessors, because by statute they are exonerated from all liability, except for the want of integrity and fidelity on their part. It may be, that adequate security to individual rights may render ex pedient some further legislation to meet cases of this kind; but however that may be, under the present form of action nothing can be recovered of the town beyond the amount of the tax that has been collected, and which alone has gone into the town treasury. This will exclude all payments for costs and charges, occasioned by the levy of the warrant of distress, paid to the collector. Perhaps this rule will be found not to be so unreasonable in its operation, as may at first be imagined. The levy and sale can only take place after notice of the tax and demand of the payment of the same. The party has always the opportunity, before any expense is incurred, to avoid the same wholly, by payment of the tax. A payment, thus made to a collector clothed with authority to enforce by levy on the person or property, is not a voluntary payment that cannot be recovered back, but at once lays the foundation for an action against the town, a party always solvent and against whom an execution can be always easily satisfied. It is only, therefore, for a party denying the validity of a tax to pay the same, if demanded by the collector, and payment thereof insisted upon; and having done so, to institute his suit against the town to recover back the same. Having no power to prevent the levy of the warrant of distress, or arrest the proceedings for selling his property, there seems no very strong necessity for permit Locke & another v. Bennett. ting the additional expense to be incurred, where it may be thus avoided without waiving any rights. It is to be borne in mind, that no such demand can be made for a tax, or necessity exist for paying an illegal one, except where such tax has been assessed by sworn officers of the law, and under all the forms of law. Without however entering further into the consideration of the policy of the rule of law, as now held, it is sufficient to say, that under our decisions the right of the party to recover in assumpsit for money had and received for a tax illegally assessed, is limited to the amount of the tax, and interest from time of payment, when the tax is paid under protest, or from the time of sale, when there is a levy and sale of property. The question was directly before us in Dow v. First Parish in Sudbury, 5 Met. 73, where it was so held. Exceptions overruled. JOHN D. LOCKE & another vs. ALANSON BENNET1. An auditor, appointed under the provisions of the Rev. Sts. c. 96, to hear the parties, examine their vouchers and evidence, state the accounts between them, and make report thereof to the court, is authorized to consider and determine whether a particular individual was the authorized agent of one of the parties, to purchase, on his behalf, the goods charged by the other in account against him. THE facts of this case, which was argued by J. E. Field, for the defendant, and by I. Sumner, for the plaintiffs, are stated in the opinion of the court, which was read at September term, 1852, as drawn up by FLETCHER, J. It does not appear from the bill of exceptions in this case, what was the nature of the action; but it must be taken for granted that it was properly referred to an auditor. The case having been referred to an auditor, when it came on for trial in the court below the plaintiffs offered the report of the auditor in evidence. The defendant objected to its admission, because the auditor passed upon the question, whether one Ray, by whom the articles charged by the plaintiff in ac Locke & another v. Bennett. count, against the defendant, were procured of the plaintiff, was the authorized agent of the defendant, to make the purchase of the goods charged; and moved that that part of the report be stricken out, because the auditor had no authority to pass upon the question. The court overruled the objection, and ruled that the auditor had authority to pass upon that question, as incidental to the matter referred; and instructed the jury, that the report was primâ facie evidence of the right of the plaintiffs to recover the amount reported by the auditor, he having found that Ray was the authorized agent of the defendant to purchase the goods charged. The jury having found a verdict for the plaintiffs, for the full amount reported by the auditor, the defendant excepts to the foregoing ruling and instructions of the court. The single question now presented is, whether or not it was within the scope of the authority of the auditor, for the purpose of stating the account between the parties, to consider and decide the question, whether or not Ray was the authorized agent of the defendant, to purchase, on his account, the goods charged by the plaintiff, in account against the defendant. This is a very simple question in form, but one of great practical importance, vitally affecting the power, and consequently the usefulness of auditors. There are several cases in our reports, in which questions touching particular proceedings of auditors, have been raised and settled; but there is no case in which the general nature of their duties has been particularly considered, or in which their general powers have been examined and defined. It is desirable to ascertain the true principle upon which the question raised in the present case should be decided; and to do so, it is necessary to look somewhat into the nature of the duties, and the extent of the powers, of an auditor. The office of auditor is one of great antiquity in the common law. The old action of account was in use as early as the time of Henry III., and the auditor is an essential part of the machinery in that proceeding. In that action, if the plaintiff succeeds, there are two judgments. The first is, that the defendant do account, quod computet, and auditors are there Locke & another v. Bennett. The pro upon assigned by the court to take the account. ceedings before the auditor are by formal pleadings, the plaintiff counting, or charging, what he claims to be due to him, and the defendant putting in a plea or discharge before the auditor, from the various items charged against him. If the pleas in discharge be traversed or denied, or their legal validity be demurred to by the plaintiff, so that the parties are at issue in law or fact, the auditor must certify the record to the court, who will either award a venire facias to try the issue, or give judgment on the demurrer. The necessity of sending these issues of fact and law, found before the auditor, to the court, to be there tried, before the auditor can proceed to examine the vouchers of the items of account, occasions difficulties and delays, and has, to say the least, been among the evils which have brought this action of account into disfavor and disuse. Lord Hardwicke observed, on this subject, that the opportunity which the defendant has of delaying the proceedings, by raising a succession of issues, triable in a formal way, like so many separate actions, has brought the action of account into disuse. Ex parte Bax, 2 Ves. Sen. 388. But still in Godfrey v. Saunders, 3 Wils. 94, the machinery of the action of account, though somewhat rusty by disuse, was operated so successfully, as to work out an account in two years, which the par ies had been litigating in chancery, for the same purpose, but without success, for fourteen years. In a more recent case, this action was resorted to with success, in a case involving complicated transactions. Baxter v. Hozier, 7 Scott, 233, and 5 Bing. N. R. 288. But, beside the evils resulting from the restricted power of the auditor, and other defects in this mode of proceeding, the action of account, itself, applies only to particular classes of accounts; so that there were some cases in which mutual accounts could scarcely be adjusted, excepting through the medium of the court of chancery. Equitable relief was originally afforded in the court of chancery, in cases of account, on the ground that the remedy, in ordinary courts of law, was unsatisfactory and inadequate; and hence it came to be laid down as a rule, that such equitable relief should be granted in Locke & another v. Bennett. nearly all cases. The modern doctrine, as laid down by Chief Baron Alexander, is, that to induce the court of chancery to interfere in ordinary cases of account, the account must be such as could not possibly be taken, justly and fairly, in a court of law. Frietas v. Dos Santos, 1 Y. & Jerv. 576. The course of proceeding in cases of account, in chancery, has always been, when a case comes to a hearing, at once, to refer the matter to one or more of the masters, to take the accounts. The system of referring matters of account to the master, can be traced back to the time of Lord Bacon, whose order on the subject is as follows: "But generally matters of accompt, excepting in very weighty causes, are not fit for the court, but are to be prepared by reference, with this provision, nevertheless, that the causes come first to hearing, and upon the entrance into a hearing, they may receive some direction, and be turned over to be considered and prepared." Tothill, 49. The whole business cf taking and stating accounts, is done by the master. All questions of law and fact, which properly arise in the course of the proceeding, are heard and decided by him. He does not, like the auditor in the action of account, send issues to the court to be tried, but he, himself, decides all the questions as they arise, and keeps the whole business under his own control, till he reports the final result. Such is the general course of proceeding, without stopping to consider separate and special reports, or particular and special orders and instructions of the court; all the proceedings of the master being, of course, subject to the general superintending power and control of the court. The final report of the master, made in pursuance of the order of reference, may be considered as somewhat analogous to the award of an arbitrator at law, subject' however to exceptions, and requiring the formal confirmation of the court. Notwithstanding the antiquity and importance of the office of master in chancery, it is understood that it has recently been wholly abolished in England, by act of parliament. The duties which have heretofore been performed by masters, are to be performed by the master of the rolls and the vice-chancellor, each to be assisted by two clerks, especially appointed for that purpose. This reference |