Thurston vs. Martin. recognised as sound law in Perkins vs. Procter, (2 Wilson R. 382, 384,) where the whole subject was most elaborately considered; And the cases of Harrison vs. Bulcock, (1 H. Bl. 68,) and Williams vs. Pritchard, (4 T. R. 2,) and Mayor vs. Knowler, (4 Taunt. R. 635,) Lord Amherst vs. Lord Somers, (2 T. R. 372,) silently proceed upon the admission of its correctness. Thus far as to the English cases. In America the question has also been discussed. In Martin vs. Mansfield, (3 Mass. R. 419, 427,) the reporter states, that the Court strongly inclined, that trespass would not lie against a collector of taxes, where the party was not liable to be taxed. But I, having been counsel in the cause, have reason to know, that the reporter states the point too strongly. The Court did so incline until authorities were cited, which shook their opinion; but the assessors being responsible, it was thought unnecessary to argue the question of the liability of the collector, and his name was struck out by consent.* later cases, however, the correctness of the English doctrine has been recognised. The general principle was acted on in Albee vs. Ward, (8 Mass. R. 79,) and it was largely commented on in Colman vs. Anderson, (10 Mass. R. 105, 119.) In New York, the same question has undergone several adjudications. In Henderson vs. Brown, (1 Caines R. 92,) the whole Court admitted the soundness of the doctrine, that if the assessment were made upon a subject matter, not within the jurisdiction of the assessors, the whole proceedings by the collector were void under his war In *In my own copy of the Reports, I find the following memorandum made in March 1809, upon page 427,-"This is too strongly stated. At first, the Court did so incline, but upon Story's citing several authorities, the opinion was shaken. But as the Court intimated a clear opinion upon the general question in favour of the plaintiff, recommended, to save time, by waiving the present incidental question, the parties consented to strike out the name of the collector." 2 See also Dillingham, vs. Snow, 5 Mass. R. 547, 559.—Gage vs. Currier, 4 Pick. R. 399.-Inglee vs. Bosworth, 5 Pick. R. 498. Thurston vs. Martin. rant. But a majority of the Court in that case thought, that the property was liable to the assessment, though described in an improper manner. In Suydam vs. Keys, (13 Johns. R. 444,) the question arose in a form substantially like that now before the Court. Certain persons, not being inhabitants, were assessed for a school tax, which by law could be assessed only upon inhabitants. The collector (against whom the suit was brought) had taken and sold the plaintiff's goods to pay the same. The Court held, that the action (trover) well lay against the defendant, because the plaintiffs were not taxable in any degree, nor under any modification. And in Cable vs. Cooper, (15 Johns. R. 152, 157,) the Court held, "that every tribunal, proceeding under special and limited powers, decides at its peril; and hence it is, that process issuing from a Court not having jurisdiction, is no protection to the Court, to the attorney, or the party, nor even to a ministerial officer, who innocently executes." A doctrine equally conclusive was held by the Supreme Court of the United States, in Wise vs. Withers, (3 Cranch, 331,) where it was decided, that trespass lay against a collector of militia fines, for taking the goods of the plaintiff to satisfy a fine imposed upon him by a Court Martial for non-performance of militia duty, and for which the collector had a warrant from the Court, the plaintiff, as a justice of the peace, not being liable to militia duty. The Court said, that the decision of such a tribunal, in a case clearly without its jurisdiction, cannot protect the officer who executes it. The Court and the officer are all trespassers. The only authority against this general current of opinion that I have met with, is, the case of Beach vs. Furman, (9 Johns. R. 229.) But that case, if it can be sustained as law, which may admit of question, proceeded upon the ground, that the parties acted under the authority of a person, who had jurisdiction in the case, and it admits, 3 See also Wood vs. Peake, 8 Johns. R. 69.-Warner vs. Shed, 10 Johns. R. 145.-Smith vs. Shaw, 12 Johns. R. 257. Thurston vs. Martin. that if there were no jurisdiction, all the parties would be trespassers. Looking therefore to the authorities, and to the principles upon which those authorities are founded, it appears to me very clear, that an action of trespass lies in the present case, unless there is something in the statute of Rhode Island, on the subject of taxes, which ought to vary the rule. Upon looking into that statute, (Digest of 1822, p. 310,) I cannot perceive any thing that ought to vary the general rule. The assessors are to assess and apportion the taxes upon the inhabitants of the town, or the rateable estates within the same. They have no authority to assess any person not being an inhabitant, and the jury have found, that the plaintiff was not an inhabitant at the time of the present assessment, or liable to any assessment. The assessment being made, they are to send a true bill or list thereof, to the town clerk, who is to deliver a true copy thereof to the town treasurer, who is to make out his warrant to the collectors of taxes to collect the same. The general course of the provisions on this subject, does not, in substance, differ from that of the other New England states. But the material consideration is, that the power of the assessors is limited and special. It is confined to inhabitants and rateable estates within the town. It follows, that if they assess persons not inhabitants, or estates not within the town, their jurisdiction is exceeded, and the proceedings, as to such persons and estates, are utterly void. If so, no justification can arise to any collector upon proceedings utterly void. The foundation failing, the superstructure must fall with it. Upon the whole, I am of opinion, that the motion for a new trial ought to be overruled. The District Judge concurs in this opinion, and the motion for a new trial is, therefore, overruled, and judgment must be entered for the plaintiff according to the verdict. CIRCUIT COURT OF THE UNITED STATES. Fall Circuit. MAINE, OCTOBER. TERM, 1830, AT WISCASSET. BEFORE (Hon. JOSEPH STORY, Associate Judge of the Supreme Court. SETH SPRING AND OTHERS vs. WILLIAM R. Gray and otHERS, EXECUTORS OF WILLIAM GRAY, DECEASED. A special contract between ship-owners and a shipper of goods, to receive half profits in lieu of freight on the shipment for a foreign voyage, is not a case of merchants' accounts, within the exception of the statute of limitations. THIS was an action of assumpsit. The declaration contained two counts. (1.) Indebitatus assumpsit, for balance of the account annexed to the declaration. (2.) Money had and received. The pleas were, (1.) Non-assumpsit, and issue thereon. (2.) Non assumpsit infra sex annos. (3.) Actio non accrevit infra sex annos. (4.) Non-assumpsit infra sex annos et triginta dies. (5.) Actio non accrevit in sex annos et triginta dies. Replication to the 2d, 3d, 4th and 5th pleas, that the accounts and promises in the declaration mentioned are and arose from such accounts as corcern the trade of merchandise between merchant and merchant, their factors, and servants, &c. Rejoinder to the same pleas, that the accounts and promises in the declaration mentioned, are not, nor did they arise from such accounts as concern the trade of merchandise between merchant and merchant, as the plaintiffs in their replication have alleged, and of this the defendants put themselves upon the country. The plaintiffs joined the issue. Spring et al. vs. Gray et al. At the trial, the whole evidence was applied to the account annexed to the declaration. The first item of the account was for a loss upon a policy of insurance, underwritten by the testator, for the plaintiffs. The Court having intimated, that such an item was not properly matter of account, it was abandoned by the counsel for the plaintiffs. The other items wholly respected the special contract hereinafter stated, and consisted of charges on the debit side of the account, and allowances on the credit side of the account, as will appear in the transcript below.* *The account is as follows: William Gray, Esq. of Boston, Merchant, in account with Seth Spring & Sons. 1810. For loss sustained on the sloop Francis, Capt. Ebenezer Jordon, master, which said Gray insured, Sept. Oct. 1811. For 35,000 gallons olive oil in casks, delivered bridge & Brown, merchants, England, and 1829. Interest on loss on Fanny, 19 years, Interest on one half the profits of Morning $ 2,500 43,750 1,270 16,140 90 2,000 880 2,850 14,758 41 $84,149 31 Cr. 1811. For amount of the outward cargo of the barque Morning Star, as per original invoice and bills of lading, 35,202 83 For his half the profits of said Morning Star's 14,469 03 1829. For balance now due from estate of said Wil liam Gray, 34,477 45 $84, 149 31 |