In all the former trials and hearings of this case it has been held incumbent on the plaintiffs to show, that all the facts necessary to justify the collector in resorting to a sale of land for collection of the taxes existed, and all the statutory requisites to charge the land with the tax, have been complied with and observed by the officer in order to authorize the plaintiffs in paying the tax before sale.

The statute in force when these proceedings were had required the collector of taxes to levy the tax first upon the goods and chattels of the delinquent, and for want thereof to take his body and imprison him before resorting to a sale of his land. This statute was altered in 1855 by authorizing a levy upon 'land before taking the body. But as these proceedings were under the old law it was the duty of the officer to take the body, if the tax-payer was resident in the state, before selling the land.

To justify this resort to a sale of the land the plaintiffs showed that Howe left the state in May, 1853, for Pennsylvania, with the apparent purpose of permanently residing abroad, and that the collector made diligent inquiry and could not find that he had ever returned to Vermont; that believing he was a non-resident he proceeded according to the statute to charge the land with the tax, and did such acts as, pursuant to the decision in this case in the 34th Vermont Reports, were requisite to charge the land.

It is admitted in the case that Howe did in fact return to live in Berkshire, in this state, in January, 1854, and lived there till 1856. That fact alone would not make the act of the collector in proceeding to sell the land illegal, provided he had made such inquiry and with such result as is above stated. Hence the importance of proving that he had made diligent inquiry for Howe, and could not ascertain that he had returned to Vermont.

To rebut this proof the defendant offered to show that the collector was informed and in fact knew that Howe lived in Berkshire when be levied the tax on the land.

*316If this was true — then as the officer had the right to take Howe’s body in Berkshire, (his authority for that purpose extending over the whole state,) — and as it was his duty to do so before levying on the land, the evidence should have been admitted. The charge of the court indicates that the court considered the authority of the constable in this respect was limited to' his own town. But this was erroneous. See the former reports of this case in the 30th and 34th Vt. and the Comp. Stat. ch. 81, § 15.

It is claimed by the plaintiffs that the evidence was rejected upon the ground that it was offered out of time. This does not expressly so appear, and we are informed by the presiding judge who signed the bill of exceptions that this claim is mistaken.

In the exclusion of this evidence there was error. For this reason alone the judgment is reversed and the case remanded for a new trial.