Winslow v. Beal & al., 6 Call 44

PREMING, Judge. I have some doubt as to the action; for I am not satisfied that the mistake is not cured by the statute of jeofails; which declares that the omission of vi et armis, or other formal words, shall not vitiate. But I give no opinion upon that point; as I am clear as to several other parts of the case. "With respect to the objection, that all the justices, who tried 'the cause, were not present when the new trial was granted, I answer, that' it does not clearly appear whether they were or not.

But it is immaterial which way the fact is; for the want of the act of assembly upon the trial" of the cause was a sufficient ground for awarding the new trial. The defendant was entitled to judgment upon the special verdict. Ror the act of assembly gave hini power to distrain the slave, if no other property could be found; and as no abuse of the power is shewn, the plaintiffs have made no case to entitle them to judgmént. The county court, therefore, decided rightly; and the district court erred in reversing it.

I am consequently of opinion, that the judgment of the district court’ should be reversed; and that of the county court affirmed. CARRINGTON, Judge. It is difficult to say what action the plaintiffs intended to bring; but all the facts stated by them are plainly trespass: for the injury, if any, was immediate, and not consequential. Of course, trespass, and not case, was the proper remedy; and therefore, upon that ground, the plaintiffs were not entitled to judgment. *But, independent of that, the cause, upon the merits, is in favour of the defendant.

Ror he had a right to distrain for the arrears of taxes; and, where no abuse is shewn, the law prima facie presumes, that a public officer does his duty. The county court, therefore, decided rightly; and I am of opinion, that the judgment of the district court should be reversed, and that of the county court affirmed. RYONS, President. The declaration states a trespass, and therefore case was, perhaps, improperly brought. But it is immaterial whether that be so, or not: for the verdict shews no cause of action whatever.

The judgment of the district court is consequently to be reversed; and that of the county court affirmed.