the lifts of dwelling-houfes were to fpecify their fituation, di- NEW-YORK, menfions, ftories, windows, materials, &c. The lifts of lands May l8°3aud lots were to fpecify the quantity of each trail; or lot, the Heudcrion <kaL number, defcription and dimensions of all buildings thereon, *■

except dwelling-houfes aforefaid. And the afleflbrs were __

themfelves to make the lifts for perfons not prepared to ex- Pa. iSo.
hibit the fame, and where perfons on being required or noti-
fied, refuted or neglected to furnifh the lifts, the afieflbrs Pa- l8*-
•were to enter on the lands, &c. and to make the lifts from the
beft information they could obtain. After the lifts were thus
coliecicd, the afieflbrs were to value the fame in a juft pro-
portion aforefaid, and to arrange the lands, dwelling-houfes
and flaves into three alphabetical lifts. The principal afleflbr
was then to give public notice in each afl'eflment *diftrift, of g

the place where the lifts and valuations were to be feen, and ,

that appeals were to be received by him relative to erroneous
or exceflive valuations. Thefe principal afieflbrs were author-
ized to receive, hear and determine in a fummary way, ac- pa. 184.
cording to law and right, all appeals againft the proceedings
of the affeflbrs: provided that the queftion to be determined
on an appeal reflecting the valuation of any lands or dwelling-
houfes Chould be whether the valuation complained of was in
a juft relation or proportion to other valuations in the fame
afleflnient diftrift. The appeals were to be in writing, and
were to fpecify the particular caufe, matter or thing refpeeting
which a decifion was requefted; and to ftate the ground of
inequality or error complained of, by reference to fome other
valuations in the fame diftrift: and in all cafes to which re-
ference was to be made in any appeal, the principal afleflbr was
authorized to re-examine and equalize the valuations as fliould
appear juft and reafonable. After the expiration of the time
for appeals, the principal and other afleflbrs were to tranfmit pj. jg^.
to the commiflioners of the diftricl, copies of their lifts and
abftracts of their proceedings, and the commiflioners were
authorized if manifeft error or imperfection appeared in any
of the abftrafts, to require the afleflbrs that the fame be ex-
plained and corrected.

Thefe are all the parts of the law that have relation to the aneitment complained of.

By another ac~t of Congrefs of the 14th July 1798, a tax pj. j05. M>%. Wh laid and afleflcd upon houfes, lands and flaves according a09"


New-YORK, to the above valuation, and the furveyor of the revenue was May 1803. t0 makc out ijfts 0f tne fums payable for every dwelling-houfe

Hcnderfon &al. and traft or lot of land, diftinguiflung what was payable for v- dwelling houfes and what for lands, and the collectors were

'to be furnilhed with thefe lifts, and were bound to colleft the

fums accordingly. In purfuance of this laft aft the defendant entered and collected the fum as ftated in the cafe.

I. Upon this cafe I am of opinion that the plaintiffs had a remedy provided by the aft for the error alleged, and that the principal afleflbr upon appeal was competent to redrefs the grievance. The authority was in general terms to receive, hear, and determine according to law and right, all appeals againft the proceedings of the afleflbr. The limitation of the affeffbr's power upon appeal refpefting the valuation of lands, 1 &c. did not apply to this cafe, for here the appeal would not

have been refpefting the valuation, but refpefting the error ia placing the theatre, which was not a dwelling-houfe, on the lift appropriated to dwelling-houfes. And as the plaintiffs did not avail themfelves of the remedy by appeal, they may be confidered as having acquiefced in the proceeding of the afleflbrs. Here is a fpecial truft created by ftatute, and a fpecial remedy provided for the correftion of miftakes in the execution of it; and I incline to the opinion, that the determination of the principal afleflbr upon appeal was intended

Cowp. 514. by the aft to be of plenary difcretion and final authority. The multifarious and minute detail of the proceedings of the afleflbrs feems to render fuch a difcretion abfolutely neceflary to the due execution of the law; for I diftinguifh this from thofe cafes in the Englifti books where the afleflbrs and col

1 H. Black. 68. left°rs OI" their land tax have been held trefpaflers. There the commiflioners had no authority at all over the fubject matter which they included in the tax. Here the theatre was required to be aflefled by the afleflbrs—if a dwelling-houfe then as fuch, if not a dwelling-houfe then as a lot of ground with due regard to the improvements thereon; and probably the valuation would have been juft the fame, whether it had been placed on the one lift or the other. The afleflbrs had jurifdiftion of the fubjeft matter: they were bound to aflefs that building in the one view or the other, and in the exercife of that duty, it is alleged and admitted that they did not exercife their judgment duly. But this is very different from the cafe in which they were not to exercife any judgment at NEW-YORK, aii over the fubjeft: in which they had ftepped out of their ,**!*^*, path and taken cognizance of a fubjeft not at all delegated to Henderfon &al. them. In fuch an inftance their proceedings would have .„ *•

... , - j. _. W. Brown.

been truly coram non judtce, and they trefpaflers. Here the

fubjeft was by law fub judice and the grievance is a mere erroT, or miftake by them while in the exercife of a lawful jurifdiftioD.

2d. Another ground that may be taken upon this cafe is, that the grievance did not arife under the aft of the 14th Ju/y, by virtue of which the defendant entered. That aft ordered a tax (of which the fum collefted by the defendant was a part) to be affeffed upon dwelling-houfes, lands and flaves, according to the valuations and enumerations to be made purfuant to the aft of the 9th of July. Congrefs by this law referred to, and adopted the valuations that mould be in faft made under the former law, without intending to difcriminate between thofe valuations that ihould be accurately and truly in all refpefts made, from thofe which ihould be in faft made and returned in purfuance of the firft law. The aft of the 14th of July having adopted the valuations under the law of the 9th of July, and ordered a tax to be laid and coUefted accordingly, it was a complete authority to the defendant to enter as ftated in the cafe. It would be a doctrine I apprehend of moft manifeft inconvenience (if it could be maintained) that if a tax be ordered by the Legiflature and to be affeffed and collefted according to fome antecedent valuation, that the colleftors of fuch tax become trefpaffers, if peradventure there fhould be an error in the affeffment or in the arrangement of the prior valuations.

In England the annual land tax is to this day apportioned and affeffed according to an antecedent valuation made as early as the year 1692, and this praftice generally and nsceffarily 3,6, prevails, in order to avoid the immenfe difficulty and labour of frequent valuations. The continental affeffments were alfo adopted by the Legiflature of this {rate in the affeffment and collcftion of a irate land tax; and in all thefe cafes of reference to a valuation made or to be made by a former law, the true conftruftion is that the document referred to is not to be aiTumcd as accurate, at the peril of the minifterial officer. The aft adopting it neceffarily ratifies it as found, for the

NEW-YORK, fpecific purpofe for which it is to be reforted to. And wheMay 1803. tjler tj1js reference De t0 a valuation under a law of five days,

Henderi'on&al. °r five years antecedent to the time of making the reference v- does not appear to me to make any difference in the principle.

The gravamen now complained of by the plaintiffs did not

arife under the aft by virtue of which the tax was laid and the defendant entered, but under a prior law directing the valuation, and my opinion is that the laft acl: was a junification to the defendant, and for thefe reafons the plaintiffs are not entitled to recover.

Lewis C. J. concurring in favour of the defendant, judgment was ordered to be entered accordingly.

Callagan and others againft Hallett & Bowne.

THE plaintiffs were pilots of the port of New-York. The a Branch Pilot defendants owners of a brig called the Neptune. The veffel f* n-T YorJr 1 nad been driven on (hore at Barnegat, to bring her from in diftrefs for a whence fafe into New-York, the defendants had agreed to bT^d/u^bfc- &ivethe plaintiffs five hundred dollars, and theiervice having )mdy void. been performed, the prefent action was inftituted to recover

SfrJhere.8 the money.

The declaration confifted of four counts : the firft, an agreement with the captain on behalf of his owners; the fecond, on one with the owners themfelves; the third, work and labour at the requeft of the defendants; the fourth, a quantum meruerunt. To this the defendants pleaded the general iffueA A cafe was referved for the opinion of the court whether the action was maintainable or not.

Pendleton for the plaintiffs. It has long been fettled that

the mafter may, when in diftrefs, hypothecate either veffel or

* Barnaul T. cargo for neceffaries to profecute his voyage. Moor 918.* 2

Brldgnian. jj(j. Rav. 984^ Noy 95. A fortiori he may bind to his en

shippen. gagements, when the veffel mutt otherwife be loft. If then

the adtion be maintainable, this can be the only tribunal; it

cannot be in the admiralty, and the reafon is that court has

jurifdidtion in cafes of hypothecation on account of the ex

traordinarv intereft and becaufe the contract is on the credit

of the /hip or goods and their fafe arrivaf.* Owners are not NF.W-YORK,

liable m the Court of Admiralty. 6 Mod. 2. They muft May ^,

then be anfwerable here. Whether the contract was with Callagan & al.

the owners or the mafter is immaterial; for the contract of . ,.'• . ..... , _, „ . Hallett &

the matter is obligatory on the owner. 1 Moll. 331. fee. 14. Bownc.

15. If the mafter ranfoms, the remedy is againft the owner.

Corr.u v. B/ackburn, Doug. 619. and in Yates v. Hall the

plaintiff recovered on the engagement of the mafter againft

the owners, though the velTel, for payment of the ranfom of

which he remained as a hoftage, was given up in fatisfaction

of the ranfom bill. In addition to thefe authorities, the laws

of the ftate render the contract valid.

Boyd contra. Principles of general policy and the invariable leaning of the court are againft this action; the words of our law are conclufive. The fpecies of contract in which the mafter can bind his owners, and the diftinctions from this cafe will appear to the court in 1 Salk. 35. 2 Dall. 104. 1 Bro. Pa. Ca. 284. and Abbot on fliipping.

Per curiam. The defendant moves in arreft of judgment. The declaration ftates,

ift. That the defendants wers owners of the brig Neptune •, that the brig, when at fea and bound for New-York, was in diftrefs; that the plaintiffs contracted with the mafter to bring her fife into port for 500 dollars; that they brought her in accordingly.

2d. The like againft owners.

3d. The ufual counts on a quantum meruit.

Three queftions are raifed,

ift. Whether the action is maintainable on the firft count, which involves two queftions.

1. Could the mafter by fuch contract bind the owners?

2. Was the contract lawful, the plaintiffs being branch pilots belonging to the port of New-York?

2d. Can the defendant move in arreft of judgment after attending the execution of the writ of enquiry, and examining witneffes?

* It u, with deference to the learned counfel, conceived that thcreafon why the siniraity cannot entertain a fait againft owners is becaufe the proceedings are in '*», and not in ferfonam. This reftriciion may perhaps be accounted for from the jealoufy of the common law which would not permit a court acting on the principles of another code, to proceed againft the fir/on of the fubjefl.


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