Gray, C. J.

This action cannot be maintained. The assessors and collectors, though elected by the inhabitants of the town, are not the agents of the town, but are public officers whose duties are prescribed by law. Dunbar v. Boston, 112 Mass. 75. If the tax was illegally assessed upon the plaintiff, his only remedy is by action of contract against the town to recover back the money paid. Baker v. Allen, 21 Pick. 382.

The plaintiff relies upon the case of Durant v. Eaton, 98 Mass. 469, in which, upon facts like those of the present case, an action of tort was brought against the assessors and collector and the officer who served the warrant; and Chief Justice Chapman said, “ The statute which protects assessors from responsibility except for the want of integrity and fidelity on their own part, (Gen. Sts. c. 11, § 51,) throws the exclusive responsibility upon the toyrn, and makes it responsible to the plaintiff if he can establish bis case.” But the question of the form of action against the town was not then before the court; and that the Chief Justice

did not mean to say that the town would be liable to an action of tort is shown by the first words of his opinion, “ The case of Baker v. Allen, 21 Pick. 382, is decisive of this case.” See also Loud v. Charlestown, 99 Mass. 208.

Exceptions sustained.