Prince against Thomas, 11 Conn. 472

Church, J. Several points have been raised and discussed, in this case, which it is not necessary for us to decide. As a general rule, it has been long settled, and is now undeniable, that if a warrant issues from a magistrate or officer of special and limited power, and who has not jurisdiction of the person, subject matter and process, all who are voluntarily and actively concerned in its procurement and execution, are trespassers. Martin v. Marshall & al. Hob. 63. Marshalsea case, 10 Co. 70. Entick v. Carrington, 2 Wils. 275. Perkins v. Proctor & al. 2 Wils. 386. Smith v. Bouchier, 2 Stra. 993. Avery v.

Pringle, 11 Johns. Rep. 444. Hall v. Howd, 10 Conn. Rep. 514. Voorhees v. Bank of U. States, 10 Peters, 450. The plaintiff claims, that he was not a subject of taxation, by the society of Bethany, and therefore, that the magistrate, by whom the warrant was issued under which the defendant justifies, had no jurisdiction of his person; and also, that the prior proceedings of said society, for several reasons, were illegal and the tax imposed also illegal, and laid no foundation for the warrant which was issued for its collection; and therefore, that the magistrate had no jurisdiction of the subject matter.

We give no opinion regarding the legality of this tax, or whether the plaintiff was legally taxable, by the society of Bethany when said tax was imposed; for conceding to the plaintiff the correctness of his claim, in these respects, we are still of opinion, that the magistrate issuing this warrant had jurisdiction and authority to do so, and therefore, that it was not void, but valid, even as against the plaintiff.

The statute providing for the collection of taxes, (sec. 14.) directs, when a town or other community shall grant a tax, that “ the select-men of towns and the committee of other communities shall make out rate-bills for the same, under their hands, containing the proportion of each individual to pay, according to the list made, and completed according to law ; and shall apply to some justice of the peace, who is authorised and required to grant a warrant for collecting such tax,” &c.

Here is a positive requirement, which the justice of the peace has no right to disobey r he acts upon the application of the committee: he cannot look into the legality of prior proceedings of a community, to which, perhaps, he does not belong, and of whose proceedings he can know nothing, except as they may chance to appear on their records. As to who are the individuals composing such community; who are liable to pay taxes to it; whether their meetings have been legally warned, and properly conducted; he cannot judge, and is under no obligation to enquire.

If an application is duly made, by the committee, with a rate-bill, good and regular upon the face of it, we see not under this statute but the magistrate is bound to grant the warrant applied for. The committee act upon their own responsibility, and are liable for any abuse of their powers. And such, we believe, has been the received doctrine on this subject, in this state, and recognised by our courts. If then, the magistrate was obliged by law to grant the warrant in question, he had jurisdiction; and so it was not void, by reason of any of the objections urged against it, by the plaintiff. Watson v.

Watson, 9 Conn. Rep. 141. If the defendant had proceeded legally, his warrant would have been his justification ; but we are of opinion, that the defendant, with a legal writ, conducted illegally. From the motion it appears, notwithstanding the officer's return to the contrary, that the defendant levied his warrant upon the horse of the plaintiff in New-Haven, and not in Bethany ; and that he posted and sold it in Bethany. This he had no right to do; it was a trespass.

The statute for the regulation of civil actions (sec. 74.) after prescribing the preliminary duties of officers in the levy of executions upon personal estate, enacts : “ And the officer shall advertise and post such estate, with a particular account thereof, on the sign-post in the society where taken, to be there sold, at public vendue,” &c. From the facts disclosed upon the motion, it very clearly appears, that the defendant, the officer, did not, either formally or informally, take the horse in question in the society or town of Bethany.

He arrested the plaintiff’s body there, and held it in custody until he arrived in New-Haven, when he released the body ; and in New-Haven, he took or levied upon the horse. Every act constituting a levy or taking of this horse, was commenced and completed in New-Haven. The statute expressly requires, that the posting and sale should have been in the same place. It was immaterial how the horse was managed, after the levy was made, or how much the convenience of the parties was promoted, by a posting and sale in Bethany.

Of these matters neither the officer nor the court may judge : the law is imperative, and to its supremacy we must submit. Watson v. Watson, 9 Conn. Rep. 141. The defendant was guilty of something more than a bara non-feasance; if he had not been, he would not have been a trespasser. He took and sold the plaintiff’s property; and these were acts of trespass, for which he must he holden responsible, inasmuch as he has failed to justify them, by his proceedings under his tax-warrant. 2 Saund. Pl. Ev. 691. Phillips v. Hall, 8 Wend. 610. We must, therefore, although not without reluctance, advise a new trial.

The other Judges concurred in this opinion. New trial to be granted.