V. Pa. 182. Pa. 183. the lifts of dwelling-houfes were to specify their fituation, di- NEW-YORK, menfions, ftories, windows, materials, &c. The lifts of lands May 1803. and lots were to fpecify the quantity of each tract or lot, the Henderfon & al. number, defcription and dimenfions of all buildings thereon, except dwelling-houfes aforefaid. And the affeffors were themselves to make the lifts for perfons not prepared to ex- Pa. 180. hibit the fame, and where perfons on being required or notified, refufed or neglected to furnifh the lifts, the affeffors Pa. 181. were to enter on the lands, &c. and to make the lifts from the beft information they could obtain. After the lifts were thus collected, the affeffors were to value the fame in a juft proportion aforefaid, and to arrange the lands, dwelling-houses and flaves into three alphabetical lifts. The principal affeffor was then to give public notice in each affeffment district, of the place where the lifts and valuations were to be feen, and that appeals were to be received by him relative to erroneous or exceffive valuations. Thefe principal affeffors were authorized to receive, hear and determine in a fummary way, ac- Pa. 184. cording to law and right, all appeals against the proceedings of the affeffors: provided that the question to be determined on an appeal respecting the valuation of any lands or dwellinghouses fhould be whether the valuation complained of was in a juft relation or proportion to other valuations in the fame. afsessment district. The appeals were to be in writing, and were to specify the particular cause, matter or thing respecting which a decifion was requested; and to ftate the ground of inequality or error complained of, by reference to fome other valuations in the fame diftrict: and in all cafes to which reference was to be made in any appeal, the principal affeffor was authorized to re-examine and equalize the valuations as fhould appear juft and reasonable. After the expiration of the time for appeals, the principal and other affeffors were to transmit Pa. 185. to the commiffioners of the district, copies of their lifts and abstracts of their proceedings, and the commiffioners were authorized if manifeft error or imperfection appeared in any of the abstracts, to require the affeffors that the fame be explained and corrected. These are all the parts of the law that have relation to the affeffment complained of. By another act of Congress of the 14th July 1798, a tax Pa. 205. 208. was laid and affeffed upon houses, lands and flaves according 209. NEW-YORK, to the above valuation, and the surveyor of the revenue was May 1803. to make out lifts of the fums payable for every dwelling-house Henderson & al. and tract or lot of land, distinguishing what was payable for W. Brown. dwelling houses and what for lands, and the collectors were to be furnished with these lifts, and were bound to collect the fums accordingly. In pursuance of this last act the defendant entered and collected the fum as stated in the cafe. 1. Upon this cafe I am of opinion that the plaintiffs had a remedy provided by the act for the error alleged, and that the principal affeffor upon appeal was competent to redress the grievance. The authority was in general terms to receive, hear, and determine according to law and right, all appeals against the proceedings of the affeffor. The limitation of the affeffor's power upon appeal refpecting the valuation of lands, &c. did not apply to this cafe, for here the appeal would not have been respecting the valuation, but respecting the error in placing the theatre, which was not a dwelling-house, on the lift appropriated to dwelling-houses. And as the plaintiffs did not avail themselves of the remedy by appeal, they may be confidered as having acquiefced in the proceeding of the affeffors. Here is a special trust created by statute, and a special remedy provided for the correction of mistakes in the execution of it ; and I incline to the opinion, that the determination of the principal affeffor upon appeal was intended by the act to be of plenary difcretion and final authority. The multifarious and minute detail of the proceedings of the affeffors feems to render fuch a discretion absolutely neceffary to the due execution of the law; for I distinguish this from those cafes in the English books where the affeffors and col1 H. Black. 68. lectors of their land tax have been held trefpaffers. There Cowp. 524. 1 Burr. 544. the commiffioners had no authority at all over the fubject matter which they included in the tax. Here the theatre was required to be affeffed by the affeffors-if a dwelling-house then as fuch, if not a dwelling-house 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 affeffors had jurisdiction of the fubject matter: they were bound to affefs 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 exercise their judgment duly. But this is very different from V. W. Brown. the cafe in which they were not to exercise any judgment at NEW-YORK, all over the subject: in which they had stepped out of their May 1803. path and taken cognizance of a fubject not at all delegated to Henderson & al. them. In fuch an inftance their proceedings would have been truly coram non judice, and they trefpaffers. Here the fubject was by law fub judice and the grievance is a mere error, or mistake by them while in the exercife of a lawful jurifdiction. 2d. Another ground that may be taken upon this cafe is, that the grievance did not arise under the act of the 14th July, by virtue of which the defendant entered. That act ordered a tax (of which the fum collected by the defendant was a part) to be affeffed upon dwelling-houses, lands and flaves, according to the valuations and enumerations to be made pursuant to the act of the 9th of July. Congress by this law referred to, and adopted the valuations that should be in fact made under the former law, without intending to difcriminate between those valuations that should be accurately and truly in all refpects made, from those which should be in fact made and returned in pursuance of the first law. The act 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 collected accordingly, it was a complete authority to the defendant to enter as stated 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 Legislature and to be affeffed and collected according to fome antecedent valuation, that the collectors of fuch tax become trefpaffers, if peradventure there fhould be an error in the affeffment or in the arrangement of the prior valuations. 1 Black. Com. 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 practice generally and neceffarily 326. prevails, in order to avoid the immenfe difficulty and labour of frequent valuations. The continental affeffments were also adopted by the Legislature of this state in the affeffment and collection of a state land tax; and in all these cases of reference to a valuation made or to be made by a former law, the true construction is that the document referred to is not to be affumed as accurate, at the peril of the ministerial officer. The act adopting it neceffarily ratifies it as found, for the NEW-YORK, fpecific purpose for which it is to be reforted to. V. W. Brown. And whe May 1803. ther this reference be to a valuation under a law of five days, Henderfon & al. Or five years antecedent to the time of making the reference 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 act 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 last act was a justification to the defendant, and for these reasons the plaintiffs are not entitled to recover. A contract with of New-York Lewis C. J. concurring in favour of the defendant, judgment was ordered to be entered accordingly. Callagan and others against 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 to affift a veffel had been driven on shore at Barnegat, to bring her from in diftrefs for a whence fafe into New-York, the defendants had agreed to be paid, is abfc- give the plaintiffs five hundred dollars, and the fervice having been performed, the present action was instituted to recover certain fum to Jutely void. Query. If good any where. Barnard v. The declaration confifted of four counts: the first, an agree ment with the captain on behalf of his owners; the second, on one with the owners themselves; the third, work and labour at the request of the defendants; the fourth, a quantum meruerunt. To this the defendants pleaded the general iffue 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 vessel or cargo for neceffaries to profecute his voyage. Moor 918.* 2 Ld. Ray. 984.+ Noy 95. A fortiori he may bind to his engagements, when the veffel mult otherwife be loft. If then the action be maintainable, this can be the only tribunal; it cannot be in the admiralty, and the reafon is that court has jurifdiction in cafes of hypothecation on account of the extraordinary intereft and because the contract is on the credit Owners are not NEW-YORK, of the fhip or goods and their fafe arrival.* Boyd contra. Principles of general policy and the invariable leaning of the court are against this action; the words of our law are conclufive. The fpecies of contract in which the mafter can bind his owners, and the distinctions from this cafe will appear to the court in 1 Salk. 35. 2 Dall. 194. 1 Bro. Pa. Ca. 284. and Abbot on shipping. Per curiam. The defendant moves in arrest of judgment. The declaration states, ift. That the defendants were 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 master to bring her fafe into port for 500 dollars; that they brought her in accordingly. 2d. The like against owners. 3d. The ufual counts on a quantum meruit. Three questions are raised, ift. Whether the action is maintainable on the first count, which involves two questions. 1. Could the mafter by such 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 is, with deference to the learned counfel, conceived that the reason why the admiralty cannot entertain a fuit against owners is because the proceedings are in rem, and not in perfonam. This restriction may perhaps be accounted for from the jealoufy of the common law which would not permit a court acting on the prin ciples of another code, to proceed against the perfon of the fubject. P Callagan & al. V. Hallett & |