¶1The trustees of a school district are confined strictly to the authority conferred upon them by the statute. In issuing a warrant for the collection of a tax, they act as ministerial officers, and where, as in this case, the statute prescribes the form and legal effect of the process, the trustees will be trespassers if they depart from it. Under 1 R. S. 484, § 88, which the trustees unfortunately followed, the warrant commands the collector to proceed in the same manner as on executions issued by a justice of the- peace. But this provision had been repealed, and the warrant should have commanded the collector to proceed in the same manner as on warrants issued by the board of supervisors to the collectors of towns. Laws of 1831, p. 248, § 2. Laws of 1832, p. 547, § 1. There is a difference as well in the effect as in the mode of proceeding under a warrant as formerly authorized by law, and a warrant under the acts of 1831 and 1832. The warrant is the only authority of the collector, and it will not aid the case that he departed from it and proceeded in a way which would have been legal, had the process delivered to him been in the proper form. As the warrant was void on its face, the parties, the collector as well as the trustees, were trespassers.
¶2It is objected that the judge misdirected the jury as to the amount of damages. In Baker v. Freeman, 9 Wendell, 36, the property illegally sold for a school district tax was bid off by the plaintiff’s agent, and paid for with the plain*610tiff’s money. It was held that he was not entitled to recover the value of the property, but only the amount for which it was sold. The judge followed that rule in this case. He told the jury that if the purchaser acted as the agent of the plaintiff, the rule of damages would be the amount of the bid after deducting the value of the harness, which was not mentioned in the declaration; and the jury found a sum which was less than the value of the carriage. The offer to deliver up the note of the agent, or to pay the same amount in money to the plaintiff, could not change the rule of damages. This was not a case where the defendants could protect themselves by a tender of amends, nor is there any case where tender of a part of the damages sustained by a trespass will affect the amount of the recovery. Whether Harry Clark has paid his note to the trustees does not appear; but he has paid, or may be required to pay it: and having acted as agent, he is entitled to an indemnity from his principal. The actual injury which the plaintiff has sustained by the illegal sale of his property is the amount paid and agreed to be paid by the purchaser— or in other words, the amount for which the property was sold.
¶3But it is said that the forty-four dollars and eighty-one cents was the surplus money which remained after satisfying the balance of the tax; that the plaintiff may recover that amount in an action for money had and received to his use; and that if he is allowed to recover the whole amount for which the property sold in this action, he may, as to a part, obtain a double satisfaction. The argument is unsound. Where property is sold for more than the amount of the tax, the party may recover the surplus in an action for money had and received to his use. In that case, whether the proceedings were regular or not, he affirms the sale. But here the plaintiff disaffirms the sale and treats the defendants as trespassers. After a recovery in this action, whatever rule of damages may be adopted, he would be estopped from bringing an action for the surplus money. He would be concluded by his election to treat the defendant as wrong-doers, and could not afterwards *611turn round and affirm their proceedings for the purpose of recovering the balance of the purchase money beyond the amount of the tax.
¶4New trial denied.