« ForrigeFortsett »
the lists of dwelling-houses were to specify their fituation, di-
menfions, stories, windows, materials, &c. The lists of lands
and lots were to specify the quantity of each tract or lot, the
number, description and dimenfions of all buildings thereon,
except dwelling-houses aforefaid. And the affeffors were
themselves to make the lifts for perfons not prepared to ex-
hibit the fame, and where persons on being required or noti-
fied, refused or neglected to furnish the lists, the affeffors
were to enter on the lands, &c. and to make the lifts from the
best information they could obtain. After the lists were thus
colleded, the affeffors were to value the fame in a just pro-
portion aforesaid, and to arrange the lands, dwelling-houses
and slaves into three alphabetical lists. The principal affeffor
was then to give public notice in each affeffment district, of
the place where the lists and valuations were to be feen, and
that appeals were to be received by him relative to erroneous
or exceffive valuations. These principal affeffors were author-
ized to rective, hear and determine in a fummary way, ac-
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 dwelling-
houses should be whether the valuation complained of was in
a just relation or proportion to other valuations in the fame
affeffment diffrid. 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 state the ground of
inequality or error complained of, by reference to fome other
valuations in the fame district: and in all cafes to which re-
frence was to be made in any appeal, the principal affeffor was
authorized to re-examine and equalize the valuations as should
appear just and reasonable. After the expiration of the time
for appeals, the principal and other affeffors were to transmit
to the commifioners of the district, copies of their lists and
"birds of their proceedings, and the commifioners were
authorized if manifest error or imperfection appeared in any
of the abstracts, to require the affeffors that the fame be ex-
Plained and corrected.
These are all the parts of the law that have relation to the
aikiment complained of.
By another act of Congress of the 14th July 1798, a tax
Wis laid and affeffed upon houses, lands and flaves according
to the above valuation, and the furveyor of the revenue was
to make out lists of the fums payable for every dwelling-house
and tract or lot of land, distinguishing what was payable for
dwelling houses and what for lands, and the collectors were
- to be furnished with thefe lifts, and were bound to collećt the
fums accordingly. In pursuance of this last act the defend-
ant entered and collected the fum as tated in the case.
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
list appropriated to dwelling-houses. And as the plaintiffs
did not avail themselves of the remedy by appeal, they may
be confidered as having acquiesced in the proceeding of the
affeffors. Here is a special trust created by statute, and a
fpecial remedy provided for the correction of mistakes in the
execution of it; and I incline to the opinion, that the de-
termination of the principal affeffor upon appeal was intended
by the act to be of plenary discretion and final authority.
The multifarious and minute detail of the proceedings of the
affeffors seems to render fuch a discretion absolutely neceffary
to the due execution of the law; for I distinguish this from
thofe cases in the English books where the affeffors and col-
lectors of their land tax have been held trespaffers. There
the commifioners 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 such, 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 just the fame, whether it had
been placed on the one list or the other. The affeffors had
jurisdiction of the subject matter: they were bound to affe's
that building in the one view or the other, and in the exer-
cise of that duty, it is alleged and admitted that they did not
exercise their judgment duly. But this is very different from
the tase in which they were not to exercise any judgment at
all over the subject: in which they had stepped out of their
path and taken cognizance of a fubject not at all delegated to Henderson &al.
them. In such an instance their proceedings would have
been truly tram non judice, and they trespaffers. Here the
subject was by law ful judice and the grievance is a mere
error, or misuke by them while in the exercise of a lawful
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 atax (of which the sum collected by the defendant
was a part) to be affeffed upon dwelling-houses, lands and
flawes, 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
bein fact made under the former law, without intending to
discriminate between those valuations that should be accu-
mtely and truly in all respects made, from those which should
be in fat made and returned in pursuance of the first law.
The at 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 colle&ed accordingly, it was a complete authority
to the defendant to enter as stated in the cafe. It would be
adotrine I apprehend of most manifest inconvenience (if it
could be maintained) that if a tax be ordered by the Legisla-
ture and to be affeffed and collected according to fome ante-
cedent valuation,that the collectors of fuch tax become trefpaş-
ets, if peradventure there should 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
*the year 1692, and this practice generally and neceffarily
Prevails, in order to avoid the immense difficulty and labour of
fitment 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 refer-
tnce to a valuation made or to be made by a former law, the
true construction is that the document referred to is not to
* affilmed as accurate, at the peril of the ministerial officer.
The at adopting it neceffarily ratifies it as found, for the
fpecific purpose for which it is to be resorted to. And whe-
ther this reference be to a valuation under a law of five days,
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
arise 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 justifica-
tion to the defendant, and for these reasons the plaintiffs are
not entitled to recover.
Lewis C.J. concurring in favour of the defendant, judg-
ment was ordered to be entered accordingly.
Callagan and others against Hallett & Bowne.
of the ship or goods and their safe arrival." Owners are not NFw-York,
liable in the Court of Admiralty. 6 Mod. 2. They must
then be answerable here. Whether the contract was with Calagan & al.
the owners or the master is immaterial; for the contract of
the master is obligatory on the owner. 1 Moll. 331. fec. 14.
15. If the master ransoms, the remedy is against the owner.
Cornu v. Blackburn, Doug. 619. and in Yates v. Hall the
plaintiff recovered on the engagement of the master against
the owners, though the veffel, for payment of the ransom of
which he remained as a hostage, was given up in fatisfaction
of the ransom bill. In addition to these authorities, the laws
of the state render the contract valid.
Boyd contra. Principles of general policy and the inva-
riable leaning of the court are against this action; the
words of our law are conclusive. The fpecies of contract in
which the master can bind his owners, and the distinctions
from this case will appear to the court in 1 Salk. 35. 2 Dall.
194. 1 Bro. Pa. Ca. 284. and Abbot on finipping.
Percuriam. The defendant moves in arrest of judgment.
The declaration states,
it. That the defendants were owners of the brig Nep-
tune; that the brig, when at £a and bound for New-York,
was in diffre's; that the plaintiffs contracted with the master
to bring her safe into port for 500 dollars; that they brought
her in accordingly.
2d. The like against owners.
3d. The usual counts on a quantum meruit.
Three questions are raised,
it. Whether the action is maintainable on the first count,
which involves two questions.
1. Could the master by fuch contract bind the owners ?
2. Was the contract lawful, the plaintiffs being branch
pilots belonging to the port of New-York 2
2d, Can the defendant move in arrest of judgment after
*tending the execution of the writ of enquiry, and examin-
ing witnesses :
"It is, with deference to the learned counsel, conceived that the reason why the
falty cannot entertain a fuit against owners is because the proceedings are in
'', and not in perfonam. This restriction may perhaps be accounted for from the
jealousy of the common law which would not permit a court acting on the prin-
d?ks of another code, to proceed against the perfon of the fubject,