V. cife of found difcretion-it would be an idle and ufelefs act, NEW-YORK, to remand this caufe back to another jury, in order that the May 1803. deed might be admitted, and then that the jury might under L. & H. Vandyck the direction of the court, prefume an oufter, fince we perceive that the facts require that prefumption-fince the law Van Beuren & Volburg. raises and draws that prefumption from facts of which there is no controverfy and no other prefumption can be warranted. The deed was illegal evidence when it appeared that the grantor's right at the time of the execution of the deed, consisted in a right of action merely. The confeffions of the plaintiff's made within a few years paft, acknowledging the right of Maria by offers to purchase, whether made for the fake of peace or from a conviction of her right, are not inconfiftent with the fact of the oufter; for, admitting her claim to have been turned into a naked right, thefe confeffions might equally have been made. They do not therefore weaken the conclufion drawn, or refulting from the antecedent facts. Our opinion accordingly is, that the defendants take nothing by their motion. The reporter has been favoured with a minute of the reasons on which his honour Mr. J. Radcliff founded his concurrence with the opinion of the court, and though the refult is the fame, it is conceived the profeffion will be thankful for its infertion "The material facts and circumstances appearing on the fecond trial of this caufe are in my opinion effentially the fame with thofe on the former trial, and the refult therefore ought to be the fame.-On that occafion we decided, "Ift. That from the long and uninterrupted poffeffion of Hyletje, the fister of Cornelius Van Alen, and her right to claim a deed under the will of Stephanus Van Alen, fuch deed might be prefumed under the circumstances of the cafe. 3 T. Rep. 155 "2d. That the deed from the widow Herkemer was void, the being actually out 7, 9. of poffeffion at the time it was made and for a great length of time before, and Cowp. 217. the jury ought therefore to be directed to prefume and oufter, and if oufted she could not lawfully convey. "3d. That although a feme covert fhe might be diffeifed so as to render her deed maintenance, and 1 Leon. 166 was cited to that effect. The faving in the ftatute of limitations alfo implies that feme coverts and infants may be diffeifed. "On thefe grounds a new trial was awarded, and I think nothing new has appeared to change the merits on these points. The teftimony of Mr. Gardinier and P. Van Nefs, which has been principally relied upon by the defendants, whether confidered as evidence of negociations for a compromife or otherwife, does not tend to difprove the fact of poffeffion in the plaintiffs, or to deftroy the presumption of an outer of the widow Herkemer. Thefe witnesses teftified to overtures between the parties or to verbal declarations of the plaintiffs merely, and did not prove the exiftence of any fact, relative to the poffeffion, materially different from what appeared on the former trial. "The deed of Mr. Herkemer, therefore, I continue to think, was properly excluded." I Leon. 166 NEW-YORK, May 1603 William Henderson and others against William Henderion & al V. W. Brown. Brown. TRESPASS for breaking and entering the plaintiff's close, If a houfe be li- called the New Theatre, and taking and carrying away three able to be affeff- hundred and twenty-five pieces of filver coin, of the value of ed, trefpafs will not lie against one dollar each. Plea not guilty, with an agreement that any of the following facts, ftated in the cafe referved for the opinion of the court, might be given in evidence with the fame advantage as if they had been fpecially pleaded. an inferior officer for executing a warrant of diftrefs though the allefiment be erroneous. * The defendant was duly appointed a collector of the direct tax for the district in which the locus in quo is fituated, under *July 14, 1798, an act of Congrefs, entitled "An act to lay and collect a diCòn. 5, fell. I. ch. 92. f. 4. rect tax within the United States." He was alfo duly† furnish† 1.2.5.6. ed with a lift in which the locus in quo was defignated as the dwelling-houfe of John Hodgkinfon, and as fuch was taxed at three hundred and twenty-five dollars, for non-payment whereof he entered and took the filver coin in question. The theatre and appurtenances on which the tax was laid and levied as aforefaid, were not the dwellings of any one, but merely buildings for the exhibition of dramatic performances, though the theatre itself was inserted in the list of dwellinghoufes by the affeffors in the valuation made under the act of 9th July, 1798, Congrefs, entitled "An act for the valuation of lands and dwelling-houses and the enumeration of flaves within the United States," and no appeal was made from the affeff Con. 5. feff. I. ch. 87.1. 8. 9. Sec. 18. ment. Had the theatre and property been inferted in the land lift, the tax upon it would have been lefs than the one with which it was now charged. The defendant had not any authority to enter and make the diftrefs, except fuch as he derived under the tax laid upon it as a dwelling-houfe. If the court fhould, on this ftatement, be of opinion that fuch authority was fufficient to juftify the entering and taking of the diftrefs, a verdict was to be entered for the defendant, otherwife for the plaintiff, with intereft from the time of the distress made the form of action or of pleading not to prejudice the determination of the question on either fide. Hopkins for the plaintiff. The act of the 9th of July, 1798, specifies the kinds of property which are the fubjects May 1803. V. W. Brown. Bulcock & fix others. of valuation, and the manner of making the lifts. Dwelling- NEW-YORK, houfes, with the out-houses appurtenant, and the lots on which the fame are erected, not exceeding two acres in any Henderfon & al. cafe, are to be inferted in one lift. All lands, &c. except thofe on which dwelling-houses are erected, are to be valued, inferted in another lift, and valued with a reference to all buildings thereon. A theatre is not in its nature a dwellinghoufe. The cafe negatives the fact of its being the dwellinghouse of any person whomfoever. It ought therefore to have been included in the lift of lands with the buildings thereon. The manner in which the direct tax is to be levied by the act of the 14th of July, 1798,* makes this very material to the Sec. 2. citizen. Houfes and flaves are taxed at fpecific fums: upon land is affeffed only the refiduary fum neceffary to complete the amount directed to be levied in each ftate. Had the theatre, which as a houfe is taxed at three hundred and twenty-five dollars, been placed on its proper lift it would not have been affeffed to one fourth of the amount. Here therefore is a wrong for which the law must afford some remedy. + Harrison v. 1 H. Black. 68.† 4 D. & E. 2 & 4. 8 D. & E. 468 || fhew that in fimilar cafes the remedy, in the English courts, is established to be against the collector who diftrains for the tax, and that trefpafs is the proper form of action. The mode of man. redress by appeal given by the act of the 9th of July, 1798, Heywood. is not applicable to the present case for many reasons. Ift. § Sec. 18.19.20. The principal affeffor can only correct inequalities in reference to other valuations: he cannot remove property from one lift to the other. 2d. The houfe or land might be very properly valued, though placed on the wrong lift; in this cafe there would be a grievance, though nothing for the principal affeffor to redress, because there would be no error in the valuation. 3d. The time of appealing to the principal affeffor is before the tax could by law be apportioned upon houses and lands. Therefore altho' the circumftance of the theatre's being placed on the wrong lift might be the ground of a ferious injury to the party, yet he could not at the time of the appeal, know it would fo opcrate: nor could the principal affeffor take that circumftance into confideration or be apprifed of it at the period of pronouncing judgment on the appeal. William v. dington v. Bor Pritchard. Ed Perchard v. NEW-YORK, W. Brown. Hamilton contra.* Three questions present themselves May 1803. for the confideration of the court. Ift. Whether this court Henderson & al. will enter into any examination of the acts of the mere ministerial officers of the general government, acting under their revenue laws? 2d. Whether the judgment of the affeffor is at all examinable here? Whether a warrant upon the face of it regular, is not a complete juftification to the defendant? On the first point he faid he should not himfelf much infift, but as the idea had been entertained by gentlemen of fome confideration, he thought it his duty not to pafs it over in filence. On the other points he obferved that policy and juftice require that mere ministerial officers fhould not be either compellable, or even permitted to queftion the legality of the proceedings of thofe under whom they act. With regard to officers of courts the rule certainly is, that the writ is a jutification unlefs the want of jurifdiction, or a manifeft abuse of that jurifdiction appear upon the face of it. The inclination of the courts has been to narrow the liabilities of all mere executive officers. In cafes like the prefent the hardship and inconvenience of making the officer liable are great. He must be fuppofed innocent of any intentional wrong, and acting merely in obedience to fuperior orders, against which no one is bound to indemnify him. There was nothing in the appearance of the theatre to strike his fenfes that it could not be used as a dwelling-house. It was not a vifible impoffibility in the nature of the building: fome part might have been occupied by the manager or Mr. Hodgkinfon, as whofe refidence it was particularly defcribed. The defendant did not therefore wilfully, with his eyes open, and when he was convinced he was doing wrong, commit the trefpass complained of. If the plaintiffs are injured they have their remedy by appeal to the principal affeffor, who would certainly afford redrefs. Should it not be obtained, they may petition Congrefs. The wrong now complained of, if any, is that of the affeffors, and if individuals are to be made liable, the action ought to be against them, not against the collector. What is here reported is from a few loofe notes furnished by a gentleman of the bar, taken without any view to publication, thofe therefore who have heard the eloquence of Mr. Hamilton will be fenfible how much this attempt falls fhort of what must have been said. * V. W. Brown. *This does not to obey. Hopkins in reply. Trefpafs is the proper and only reme- NEW-YORK, May 1803. dy for the plaintiffs, nor could it be maintained against the affeffors unless the collector were liable: if so at all, it muft Henderson & al. be as a trespaffer, and he may therefore be sued separately. If it be meant that cafe fhould be brought against the affeffors, that action certainly will not lie, unless they maliciously and corruptly made a wrongful affeffment. The rule that a process regular upon the face of it, shall justify the officer, is confined to the officers of courts of record and extends to no others. The plaintiffs know the defendant, not as acting under any authority, but as a mere trefpaffer. If he avail himfelf of any justification under the law of the United States, he muft shew himself protected by it: and if the court cannot examine that authority they muft reject the juftification, and follow: there is then the party ftands without defence. Numerous cafes in a poffibility of the books fhew that the acts of all officers are examinable by from examining, being reftrained action in a court of record. A very common one is that but being bound against meffengers of commiffioners of bankrupt. So the ftate warrant caufes. Trefpafs against collectors of rates, fines and taxes is every day's practice. Of this the authorities cited are proofs, and the one from H. Black. is nearly analogous: the appeal to the principal affeffor cannot reach. the grievance complained of. His power is to + re-examine and † Sec. 20. equalize the valuations. In the preceding fection it is exprefsly provided, "That the queftion to be determined by "the principal affeffor on appeal refpecting the valuation, "fhall be whether the valuation complained of be, or be not "in a juft relation or proportion to the other valuations in "the fame affeffment diftrict." But the complaint here is of a different nature. Suppose the valuation in point of fact, not too high in relation to other valuations, but much too low, ftill it may be taxed too high, because taxed as a house. How the tax would be affected by placing the theatre on a wrong lift could not be known at the determination of the appeal; but even if known, the answer to the appeal would be a conclufive one for if the property was valued either in a" just relation" to other property, or lower, the equalization which the principal affeffor is authorized to make, would be no remedy for the error here complained of. Thompson J. This was an action of trespass for making diftrefs as collector for a tax on the theatre in New-York, |