Osborn v. Inhabitants of Danvers

Wilde J. delivered the opinion of the Court. Whethei the plaintiff was liable to be assessed in this State, for the personal property which he had in trade in New York, is an important question, upon which we are not in this case required to express an opinion;1 for admitting that he was not, still we think this action cannot be sustained. The remedy, and the only remedy, for an over valuation and assessment, is under the statute of 1785, c. 50, § 10, by which it is provided, that whenever any person shall be aggrieved by being overrated in the assessment of any tax, he may apply to the assessors to make a reasonable abatement;2 and if they refuse so to do, complaint is to be made, in nature of an appeal, to the Court of General Sessions of the Peace, who are authorized to relieve him.3 This is an adequate and convenient remedy : but great mischiefs would follow, if we were to hold that an excess of valuation would render an assessment illegal and void. And it is immaterial whether the excess is caused by including in the valuation, property of which the person taxed is not the owner, or that for which he is not liable to be taxed. In both cases the remedy is the same. As the plaintiff was liable to taxation for his personal property, the assessment was valid, although he was assessed for more than his due proportion.4 His only remedy is by application for an abatement; for when a new right is created by statute, which at the same time provides a remedy for any infringement of it, that remedy must be pursued. 3 Mass. R. 309 ; 6 Mass. R. 44. Without, therefore, discussing the other points in the cause, we are of opinion that the plaintiff is not entitled to recover, and according to the agreement of the parties, a nonsuit must be entered, and judgment for the defendants for costs. Footnotes [2] See Revised Stat. c. 7, § 37. [3] Complaints of this nature must now be made to the County Commission ers. Revised Stat. c. 7, § 39. [4] See Preston v. Boston, 12 Pick. 11,12,13.