Andrews v. Chase

The opinion of the Court was pronounced by Williams, J. This is an action of trespass for taking goods. The defendant pleads in bar a justification that he took the goods as highway surveyor, to satisfy a highway tax which he had against the plaintiff to collect. To this plea' there is a special demurrer. As the plaintiff complains only of an illegal taking, and does not complain of any farther illegal act of the defendant, either as a distinct injury, or as matter of aggravation, if the plea shews a sufficient authority for the taking, it is all that can be required. If a defendant relies in justification of a trespass either on an authority in law or in fact, it is sufficient to set forth this authority in his plea. If by an abuse of an authority in law, he becomes a trespasser ab initio, or if an authori [413] ty in fact is exceeded, so as to be no justification for what was done further than the authority warranted, such abuse, - •or such excess, must be set forth in a replication. A defendant may, however, in his plea, set forth such proceedings on his part, as will shew him to be a trespasser ab initio. As if in justifying the taking on an execution or warrant, for the collection of taxes, he should state that he sold the property taken at private sale, the plaintiff, to such a plea, might demur, and it would not be necessary to point out the abuse by a replicátion. But if in stating his proceedings after the taking he neglects to state those steps which he ought to have taken in order to render his proceedings regular, it is a mere omission ; and as it was not necessary for him to set forth any thing more than would justify the taking ; so if he neglect to state his after proceedings, or does state them defectively, he is not on that account to be treated as a trespasser from the beginning. If the defendant was justified in taking the property of the plaintiff to satisfy the tax in question, the plaintiff cannot treat him as a trespasser, because he has omitted to state a regular course of proceeding with the property after the taking. This answers the objection to the regularity of the sale, made on the ground that the defendant has not set forth that the property was duly posted, or that the place where sold, to wit, the store of A. & C. Austin, is not described as a public place, and disposes of all the objections to the plea under the general demurrer. Our attention is then called to the objections to the plea particularly pointed out, and without examining them numerically, they will all be considered by examining the law in relation to the appointment and duty of highway surveyors. The selectmen must divide the town into districts, and a surveyor for each district must be appointed by the town. When appointed, the surveyor must take the oath required, and then is competent to act. as such, and to do all the duties required of him by law. This oath may be taken before the town clerk, one of the selectmen, or a justice of the peace. The authority to administer the oath is expressly given by the ninth section of .the act regulating town meetings, &c. Without any such [414] authority, the judicial character of a justice of the peace would authorize him to administer this oath. ^ When the "person appointed to any office is not present, it is made the duty of the selectmen to cause him to be notified to appear and take the oath. The form of this notice contemplates that the person is to appear before the town clerk or one of the selectmen ; but v/e have no doubt that if the person appointed voluntarily'and without compulsory process submits to take the oath, he may do it before the town clerk, one of the selectmen, or a justice of the peace; and that the authority given in the section of the statute before mentioned, to a justice of the peace, to administer the oath of office, authorizes him to administer it as well out of town meeting as in. When'the officer is sworn at any other time except in town meeting, and before any other officer than the town clerk, it is then his duty to file a certificate of his being so sworn, with the town clerk, or he subjects himself to a penalty, and also to the inconvenience of proving that he is sworn, if at any subsequent period it becomes necessary; but still he is competent to act when sworn, and he may prove that he is sworn by other evidence than by the record. The duty of á highway surveyor in collecting a tax, is clearly defined by statute. As the tax may be paid in labor, he must give each person taxed three days notice before the time for doing the work (Sec. 6 of act relating to highways.) If not paid in labor, he may then levy and collect in the same manner as constables are directed to collect state taxes. — (Sec. 7.) In the levying and collecting slate taxes, the constable must give six days notice to each inhabitant or resident in his town, taxed in the assessment or rate-bill, of the amount of the tax, and of the time and place when he will attend to receive the same, before he can levy the same by dis-training goods or chattels. By comparing the two statutes, it is apparent that in the one ease, as the tax is to bo paid in labor, a demand or notice of only three days is required ; and in the other, a demand of six days is required. In both cases, it is a demand of payment; in labor in one case, and in money in the other. A neglect to pay, equally subjects the person owing the tax to a distress to com' [415] pel the payment. It cannot by any possible construction of the statute, be considered as the duty of a highway surveyor, first to demand the payment of the tax in labor, and after three days again demand payment in money, and then wait six days further before he can proceed to levy on property to enforce the payment of the tax. This general view of the duty of a surveyor of highways, answers several, if not all the objections which are raised to the defendant’s plea of justification, by the special demurrer. There were some further objections urged in the argument, which may require a brief notice. It was said-that the plea does not set forth that the defendant was sworn to the faithful discharge of .the office of highway surveyor.of any highway district in Whitingham; but as the plea does state that the defendant was appointed surveyor of district No. 26 in Whitingham, and states that he was sworn faithfully to perform the duties of surveyor of district No. 26, it must be understood to be the district before .mentioned, and of course, a district in the town of Whitingham. It is also contended, that it is not stated in the plea, that the warrant to the defendant for the collection of the tax, was signed by the magistrate, Amos Brown ; but, as it is said a warrant was annexed to the rate-bill directed to the defendant as surveyor, by Amos Brown, a justice of the peace, commanding him to levy and collect, &c. it implies that the warrant was issued and directed in the manner in which they are usually issued and directed, and of consequence that it was duly signed and directed in the usual way. The Court consider that the defendant has sufficiently set forth in his plea, his appointment as surveyor of a regular highway district in Whitingham — that he was duly sworn as such — that he had a tax-bill and a warrant duly issued thereon, commanding him to collect the same — that the plaintiff was assessed in a sum of money for a highway tax — that the defendant demanded the tax in labor, or gave the plaintiff the regular notice to work out the same, and on the plaintiff’s neglect and refusal to pay the tax, the defendant, by virtue of his tax-bill and warrant, and to enforce the payment of the tax, seized and took the property, for the taking of which, this action is brought. This [416] justifies the taking, and entitles the defendant to a judgement. The plea in bar is adjudged sufficient, and The judgement of the County Court must be affirmed.