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was exercised previous to the adoption of the he obtained the lease, and that he could dispose of Constitution, and it has been so long used, and so the lease to Hamlin at a large profit to himself, and beneficially for the public, that it ought not now to such means of knowledge was derived from his be called in question. Stoughton v. Baker, 4 Mass. position as agent. If a manager of a business were 522; Commonwealth v. Ruggles, 10 id. 391; Common- allowed to obtain such a lease for himself, there wealth v. Vincent, 108 id. 441; Cottrill v. Myrick, would be laid before him the inducement to produce 12 Me. 222; Lunt v. Hunter, 16 id. 9; State v. in the mind of his principal an under-estimate of Franklin Falls Co., 49 N. H. 240; S. C., 6 Am. Rep. the value of the lease, and to that end, may be, to 513; Holyoke Co. v. Lyman, 15 Wall. 500. But mismanage so as to reduce profits, in order that he while the Legislature has power to regulate and might more easily acquire the lease for himself. It limit the time and manner of taking fish in waters is contended by appellant's counsel that the rule we which are public breeding-places or passage-ways apply, which holds an agent to be a trustee for his for fish, it has not assumed to interfere with the principal, has no application to the case at bar, beprivileges of the owners of private ponds having no cause Davis was not an agent to obtain a renewal of communication through which fish are accustomed the lease, and was not charged with any duty in reto pass to other waters. Such ponds, whether nat- gard thereto; that his was but the specific employural or artificial, are regarded as private property, ment to engage amusements for the theatre, and that and the owners may take fish therefrom whenever he was an agent only within the scope of that they choose, without restraint from any legislative employment; that Hamlin having a lease which enactment, since the exercise of this right in no way would expire April 16, 1883, had no right or interest interferes with the rights of others. The Legislature in the property thereafter, and that Davis, in protects the owners of such ponds in the enjoyment negotiating for the lease, did not deal with any of their privileges (Gen. St., chap. 251, $ 5), and property wherein Hamlin had any interest, and that they are expressly excepted from the statutory such property was not the subject-matter of any restrictions by the third section of the act upon trust between them. Although there was here no which the indictment in this case is founded. The right of renewal of the lease in the tenant, he had a defendant is in possession, claiming the ownership reasonable expectation of its renewal, which courts of North pond. There is no suggestion that the of equity have recognized as an interest of value, public have any rights in its waters other than as a secretly to interfere with which, and disappoint, by breeding-place for the supply of fish to other streams, an agent in the management of the lessee's business, or a channel for their passage. If as the defendant we regard as inconsistent with the fidelity which claims, the trout are within his control, and there is the agent owes to the business of his principal. no communication through which they can pass There was the good will of the business, which befrom the pond to other waters, the indictment longed to the business as a portion of it, and this cannot be maintained. If, as is claimed in behalf the agent got for himself. It is further argued that of the State, there is free communication through the relation here between Hamlin and Davis was which trout pass from the pond to the streams lead- that of master and servant, or employer and employee, ing into it and to the Ammonoosucriver, the and that the rule has never been applied to that indictment can be maintained upon proof of those relation as a class, and that the classes coming facts.”
within that doctrine are embraced within the list of
defined confidential relations, such as trustee and In Davis v. Hamlin, 108 Ill. 39, where a con
beneficiary, guardian and ward, etc. The subject fidential agent of one having a lease of a theatre,
is not comprehended within any such narrowness of who, from his position, was well acquainted with
view as is presented on appellant's part. In apply. the profits of his principal in the use of the build
ing the rule, it is the nature of the relation which ing, and who knew, some months before the old is to be regarded, and not the designation of the one lease expired, that the latter was desirous of renew- filling the relation.” Citing Hamilton v. Wright, 9 ing his lease, offered privately to lease the theatre
Cl. & Fin. 111. See Devall v. Burbridge, 4 W. & S. of the owner, proposing to give a larger rental than
305; Hill v. Frazier, 22 Penn. St. 320; Fairman v. was reserved in the old lease, and denied to his
Bavin, 29 Ill. 75; Gilman, Clinton and Springfield principal that he was competing with him for the
R. Co. v. Kelly, 77 id. 426; Bennett v. Vansyckle, 4 lease, but in fact did procure a lease to be made to
Duer, 462; Gillenwaters v. Miller, 49 Miss. 150; himself, it was held, that the benefit of such a lease Grumley v. Webb, 44 Mo. 446. See also Gower y. a court of equity would hold to inure to his princi- Andreu, 50 Cal. 119; S. C., 43 Am. Rep. 242, and pal, and that the agent would be held to hold the
note, 244. same as a trustee for his principal. The court said: “Public policy, we think, must condemn such a In Fort Clark Horse Ry. Co. v. Anderson, 108 Ill. transaction as that in question. To sanction it 64, it was held that an injunction would not issue to would hold out a temptation to the agent to specu
restrain the moving of a house through a street and late off from his principal to the latter's detriment. upon and along the plaintiff's track, the operation Davis very well knew that his employer would be occupying but three or four days, and the damage willing to pay a much higher rent than that at which not being irreparable, even though the defendant
claimed the right to move other houses in the be well employed in seeing that the statutes which same manner. The court said: “Granting that
will be passed whether or no, are drawn without at
least the most patent faults. appellant has the exclusive right of way in the
The title of the Tenement House Tobacco Act (L. street for its cars, as against the appellee moving a
1883, ch. 93) is certainly a piece of legislative work house along the street, the question arises whether which disgraces those who voted for it, however forthe threatened injury is one of such a character that tunate it may have proved to the class which has a court of equity will interfere by injunction to
profited by its form. A still more striking example of
the present often careless method of legislating is to be prevent it. The answer sets up in defense that there
found in one of the most important statutes in this would be a perfect remedy at law for the injury, if
State, namely, in Law 1880, ch. 542, as amended by wrongful. The general rule certainly is, that before Law 1881, ch. 361, and Law 1882, ch. 151, relating to the a court of equity will lend its aid to enjoin a mere
State taxation of corporations. Of them any difficult trespass, facts and circumstances must be alleged in questions which that statute has presented, there is
one for which there is less excuse than that raised by the bill from which it may be seen that irreparable
the word "interest" in section 1. mischief will be the result of the act complained of, In the face of the rule laid down by Cooley and Hiland that the law can afford no adequate remedy. lard that interest is not due upon a tax unless it is Livingston v. Livingston, 6 Johas. Ch. 497.
provided for by statute, and in the face of the PennThis clearly does not make a case of irreparable sylvania
system, there is no excuse for the Legislature damage, or one where there would not be an
having left any doubt whether interest in addition to a
penalty of ten per centum for failure to pay the tax adequate remedy at law. But the bill sets up further,
was due under this statute. It is the object of this that the defendant claims the right, at all times, to article to show that interest is not recoverable, and at so obstruct and stop the public travel on appellant's
the same time the discussion which is necessary to a railroad, and appellant fears he will often attempt construction of this statute on this point is set forth to do so, and that if he should carry out his threats
with some fullness in order to show how completely
the available learning on this point has been ignored in that regard he would cause appellant great and
in the framing of the statute. irreparable loss and damage, and would impair the In the year 1880 the Legislature was confronted with value of appellant's franchise to an amount which the common rule that express statutory authority is cannot be estimated. The answer shows this claim
necessary for interest upon a tax. In addition to the of right to be to use any streets over which appel- September 29th, 1883, see 65 Ala. 391; 16 Rep. 42;
authorities quoted in the ALBANY LAW JOURNAL of lant's railroad passes, in moving houses, when it 53 Tex. 157; 1 Pears. 300; 12 W. N, C. 293; 13 id. 324; 1 should be necessary in the carrying on of appellee's Mackey, 463; 62 Mo. 347. This rule had been recogbusiness of house-moving, and that he would in no nized and followed in New York, 6 How. 116. way injure the easement, or franchise, or property In 19 Wall. 231, it is stated that the court gave no inof appellant in so doing. The moving a house on
terest because of the particular circumstances of the
case, but the authority to impose interest was expressly a street is known to be of rare occurrence.
given by Laws 1867, ch. 169, $ 8 (14 U. S. Stat. at L., pp. never again happen with appellee to have occasion to
473, 106, 138). Sometimes a statuto provided for inuse the street in question in this same way. The terest simply without the specification of any rate, and probability, under this claim of right of future then the legal rate was to be taken. 71 Ill. 27. repetitions of the threatened act, is too slight, in
There were a few cases where the refusal to allow in
terest on taxes had been placed upou the special cirour opinion, to lay a ground for equitable interfer
cumstances of the case, and not upon the want of ence on this score, or for the prevention of a statutory authority, although there would seem to multiplicity of suits. * * Appellee claims but have been such want. Such are 51 Penn. St. 465, and the right to move a house on the street when it may 91 id. 47. It would seem to be a little doubtful whether be necessary to do so in the exercise of his business.
the court considered in the latter case that interest This would be but a temporary interruption of the
was given by the statute or not, although they denied
it upon the special circumstances of the case. The exercise of appellant's right, - a trespass, if wrong- act of 1874 (L. 1874, p. 71, $ 10), gave interest prior to ful,- for which there would be a remedy by an settlements, and the act of 1877 does not repeal this action at law for damages."
section. So that it must seem that interest given upon taxes under the act of 1877 depended on Laws
1874, p. 71, $ 10. The only objection to this is the CARELESS LEGISLATION ON CORPORATE TAX
holding in 12 W. N. C. 293, as to act of 1877. But there ATION-INTEREST ON TAXES.
is nothing to indicate that the court did not rely for the general authority to give interest upon the act of 1874, although they denied it for particular reasong.
See unreported case of Com. v. Coal Co., Nov. 1878. winter in favor of and against a Civil Code in Dauphin Co. Common Pleas. The existence of ex. New York State. In the meantime the current legis
press provisions as to interest upon certain taxes im. lation still remains without special oversight. Several posed by the statutes of this State was a recognition attempts have been made in the New York City Bar
of the existence of this rule. See Laws 1855, ch. 427, Association to provide some means of supervising the $$ 12, 26; Laws 1882, ch. 410, SS 843, 844, 918; Laws 1880, framing of laws, so that year by year our particular ch. 448; Laws 1870, ch. 291, tit. 6, $ 5; Laws 1881, ch. jurisprudence may grow more harmonious as a whole, 249; Laws 1880, ch. 534. So in case of proceedings or at least not more incongruous than it now is, and against persons accountable for public moneys, the that new laws may be in themselves free from such comptroller was to state an account against the delinfaults as are found in the example here set forth. quent, charging interest at the rate of seven per cent. These attempts have as yet failed. A portion of the 2 R. S. (7th ed.), p. 468, $ 23. See also Laws 1880, ch. strength so freely bestowed upon the Civil Code might 327. If the case in 5 Cow. 331, should be cited contra,
the answer is that while the county may be the debtor alties for failures to make reports or pay taxes in cases and responsible to the State, it is not the tax-payer, of corporations. but it is a debtor for taxes, which latter the law pre- (a) The law of Pennsylvania as to interest upon sumes that it has collected. This case presents an in- taxes due from corporations. stance of the statutory authority requisite to support From the year 1811, until the year 1867, there was an a claim for interest. See the reference of the court to express statutory basis for the recovery of interest on Laws 1814, ch. 29, $ 4, and note, that in subsequent years unpaid taxes in the statute of 1811, which related to interest was expressly given by statute in this connec- public accounts, and which gave interest on all bal. tion. See R. S. pt. 1, tit. 3, art. 2, § 33, now repealed. ances due the Commonwealth from three months Laws 1850, ch. 298, § 12, now repealed, Laws 1855, ch. after the date of settlement. Purdon's Digest, 118; 427, $ 12, the present law.
Del. Co. v. Com., 50 Penn. St. 409; Com, v. Coal Co., 1 Whatever may be the logical consistency of a system Pears. 320. of law which permits the recovery of interest upon There has never been any such provision in the State of money due in general, but not upon taxes, it is cer- New York applicable to taxes. tain that such a rule exists, and that taxes differ in In 1867 a Pennsylvania statute provided that taxes many respects from ordinary debts.
should bear 12 per cent interest from the time they In various ways the question has been discussed become due and payable to time of settlement, and inwhether a tax is a debt or not, and whether it is an stead of such balances bearing interest at legal rate obligation which rests upon an implied contract. from three months after date of settlement, they Among the later cases are: Hibbard v. Clark, 56 N. bore interest at 12 per cent from thirty days after date H. 155; Union Co. v. Bordelon, 7 La. Ann, 192; Geren v. of settlement until paid. Laws 1867, p. 58. Gruber, 26 id. 694; Shreveport v. Gregg, 28 id. 836; State In 1868 this thirty days was changed to sixty (Laws v. Yellow Jacket Co., 14 Nev. 220; United States v. 1868, p. 108), and in 1879 to thirty days after the taxes Pacific R. Co., 4 Dill. 66; 4 Wis. 228; City of Dubuque were due and payable. Laws 1879, p. 112. v. N. R. Co., 49 Ind. 75; Perry.City v. R. Co., 58 Ala. In 1877 there is no reference whatever to interest, 546.
except one similar to that in Laws 1880, ch. 542, section The above cases are cited simply to show that the 1. Laws 1877, p. 6. species of liability to pay money here in question dif- In the Standard Oil case the court seem to regard fers from other kinds of liability in several particulars, this as preventing the imposition of any interest under and that the peculiarity of not bearing interest is only that act. Com. v. Standard Oil Co., 12 W.N. C. 293. one among others which makes taxes a distinct class In 1874, judgments for taxes were to bear 12 per cent of liability. If it were a new question whether taxes interest until paid. Laws 1874, p. 72. bore interest, then the analogy of this liability to (b) The law of Pennsylvania as to penalties for failother money liabilities might be important in decid- ure to make reports, or pay taxes in cases of some coring whether taxes should not bear interest. As it is, porations. whether a tax be considered to have some features of 1. If report on capital stock not made, add ten per a debt, and not others, is wholly immaterial since the cent. See Laws 1858, p. 419; 1861, p. 468; 1868, p. 108, law has attached to it the well-settled peculiarity of section 3; 1874, p. 69, section 2; 1877, p. 7, section 2; 1879, not bearing interest.
p. 113, section 2. The liability to pay interest on taxes cannot be Compare New York Laws 1880, ch. 542, section 1. founded on any such meaningless reasoning as that 2. If report on gross receipts not made, or tax not taxes are debts and all debts bear interest, or a tax is paid, add ten per cent. a contract to pay money, and failure to pay, entitles See Laws 1868, p. 111, section 8; 1877, p. 9, section 5; the State to interest.
1879, p. 116, section 7. Such being the general law upon this point it is evi- Compare New York Laws 1880, ch. 542, section 7; dent that had the Legislature attended to it, the stat- 1881, ch. 361, section 7. ute would either have not contained the word inter- 3. If report not made as to Ins. Cos.,'or tax unpaid, est, in which case no interest could have been recov- add ten per cent. ered, or it would have contained clear and distinct See Laws 1877, p. 10, section 6; 1879, p. 117, section 8. provisions in regard to it, such as those in Laws 1880, Compare New York Laws 1880, ch. 542, section 5; ch. 534, $ 3.
1881, ch. 361, section 5. Instead of this we find the word “interest” in this The phrase under discussion will be examined first connection, “if the comptroller is not satisfied with in the Laws of 1880, and then in the Laws of 1881. the valuation so made and returned, he is hereby au- The phrase "taxes, penalties, and interest" in the thorized and empowered to make a valuation thereof, Pennsylvania statutes first appears in Laws 1874, p. 69, and to settle an account upon the valuatiou so made section 2, and is repeated in the same words in Laws by him for taxes, penalties, and interest due the State 1877, p. 7, section 1, and in Laws 1879, p. 113, section 2 thereon." See section 1.
The word “penalties" in the act of 1874 can only Under this provision the question arises whether in-| refer to the penalty for failure to report, for there is terest is due in any case, or in all cases of failure to uone for failure to pay the tax, and never has been, and pay the tax imposed by section 3, or only in those in the word “ interest" can only refer to the interest erwhich an account is thus settled. As there are no other pressly authorized by section 10 of the same act. provisions as to interest, a failure to pay the tax on When the New York Legislature passed chapter 542, gross earnings, or the tax on premiums, would be ac- Laws 1880, copying the same from the Pennsylvania companied on'y by a penalty of ten per cent.
act, they omitted all express authorization of interest, There is only one method of dealing with this diffi- but followed the Pennsylvania act in providing for a cult provision, and that is through the history of the percentage in case of failure to report, and in pot proPennsylvania system. But it will be seen in following viding for a percentage in case of failure to pay the that out how completely must a careful examination tax. of the Pennsylvania law have been ignored.
This left the word "interest" in the New York act The propriety of a recourse to the Pennsylvania sys- superfluous, and without any provisions as to interest tem is obvious, but see 76 Mo. 389, and cases cited. corresponding to it, such as existed in the Pennsylvania
We will state briefly (a) the successive provisions of statute, at least in those of 1874, or 1879. the Pennsylvania law as to interest upon taxes due With these facts before us, the construction of the from corporations, and (b) the provisions as to pen. word “interest" in the law of 1880 must be arbitrary.
The State migbt argue that since the comptroller is statute is certainty, and the Legislature owes a duty authorized to settle an account for the “taxes, penal- to the people to see that at least no carelessness of ties, and interest due the State," the word “penalties" theirs is the cause of uncertainty in such important must refer to penalties for failure to report, and to pay statutes as those relating to taxation. the tax, and the word "interest” though not used in
EDWARD LYMAN SHORT. a clause expressly imposing interest, or in connection with any such clause, yet implies the intention that interest should be recovered. There is no intellectual
PARTITION UNDER WILL WITH OUTSTANDING satisfaction in this.
POWER OF SALE. On the other hand, one distinction between the New York and the Pennsylvania system would seem to be that throughout the former, a penalty of ten per cent COME very interesting questions arise in view of the takes the place of the penalty and interest in the lat- recent decisions of the Court of Appeals, as to ter.
when partition may be maintained under a will when See Laws 1880, ch. 534, where interest is expressly there is an outstanding power of sale. given, but no penalty.
Hetzel v. Barber, 69 N. Y. 1, establishes the right In the act of 1877, there were no express provisions as beyond question in the devisees to reconvert an estate, to interest, although this phrase "penalties and in- which by a will has been converted from realty into terest" occurred, and the court held that interest was personalty, into real estate, and thus cut off the power not due under that statute. 12 W. N. C. 299. They of sale. also held that in the case of the gross receipt-tax, the Prentice v. Janssen, 79 N. Y. 478, follows up and enpenalty was a substitute for interest under the same forces this doctrine, and goes further, in this, that it is statute. Com. v. Coal Co., 2 Peas. 214.
there held that where a part of the devisees have re. Every end that is sought to be attained by the im- converted by a sale, and the remaining devisee has by position of interest is reached through this penalty of treating the property as land assented to a practical ten per cent.
re-conversion, the power of sale is cut off, and parti“We think the penalty is to be regarded not only as tion will lie. a punishment to the delinquent, but also and princi. In these cases the decision is put upon the ground pally as a compensation to the State and county for that the estate passed to the devisees subject to the the delay of payment, and the consequent derange- power of sale, and that they had a right to take the ment to their finances." State v. Huffacker, 11 Nev. land-the rights of third parties not having intervened 300.
-and thus cut off the power of sale. But it will be In dealing with the same phrase in the law of 1881, it observed that it is not held that partition will lie until may be premised that in the Pennsylvania system as the power of sale has been extinguished. to taxing transportation and insurance companies in In Morse v. Morse, 85 N. Y. 53, it is held that par1877, penalties for failure to report aud failure to pay tition will not lie where the executor is clothed with the tax were imposed, and in the New York system of power to rent, etc., because thereby the estate is 1880 and 1881, there are similar penalties as to like cor- vested in him. And in Mott v. Ackerman, 92 N. Y. porations,
540, we find that a power of sale with directions to In the amendment of Laws 1881, ch. 361, there ap- pay debts or distribute passes to an administrator with pears what does not appear in the Pennsylvania act, the will annexed. namely, a provision for a percentage of ten per cent in Now the query naturally arises, will partition ever case of failure to pay the tax imposed by section 1. lie as such, wbere then is an outstanding power of The word “interest,” however still remains without sale? It certainly will not where the power to rent is any provision to which it can attach.
given. This word was manifestly left in the New York How can it where the executor still survives,or where statute through neglect and inattention, and while in the power passes to an administrator with the will the act of 1880 it can only be regarded as superfluous, annexed, unless all of the heirs have re-converted ? it may have a force in the act of 1881, by referring it to This would seem to leave the persons to whom the the new provision as to a penalty for failure to pay the estate descends to their remedy (if they desire to entax. The word “penalties" in the act of 1881 will force distribution) of bringing suit against an executor then refer, as it did in the act of 1880, solely to a penalty upon proper grounds to compel him to sell, or if the for failure to report.
executor is dead, to have an administrator appointed The advantage of this latter theory is that it gives a and compel him to sell. meaning to the word " interest,” in the act of 1881. We must note however the remark of Judge
It is believed that sufficient accuracy in the statement Andrews, in Morse v. Morse, that “if the parties took of the Pennsylvania law has been attained for the pur- a present legal estate in the farm as tenants in composes of this article. Those statutes standing alone mon subject to a bare power of sale," then partition are obscurely worded and difficult of solution.” would lie: If this is a correct statement of the law Com. v. Phoenix Ins. Co., 1 Pear. 383. The provision we can put it thus: that interest is not to relieve from penalties, in Laws Partition will lie when the land is directly given to 1868, p. 113, section 12; Laws 1874, p. 72, section 10; the devisees as tenants in common, notwithstanding a Laws 1879, p. 119, section 13, read in connection with bare power of sale. 12 W. N. C., and 2 Pears. 414, has not been overlooked. If the will contains directions to the executor to sell, The mind is very impatient of having to deal with to pay debts or distribute, partition will not lie, for in such methods as the foregoing, in the construction of such case the administrator with the will annexed can a statute, but sometimes they are the only ones ap- execute the power. plicable.
This solution leaves the road clear for suitors, inasThe true view of these statutes would seem to be much as by it no questions are raised as to inchoate or that interest is not collectible under Laws 1880, ch. complete dower interests or curtesys, for in the only 542, section 1, as amended by Laws 1881, ch. 361, sec- case in which partition will lie the land has passed tion 1, but at any rate the discussion through which it with all its incidents. While in all other cases the is reached shows an utter disregard by the Legislature distribution is made as of personalty. of any care in the preparation of this statute, at least But this still leaves the very interesting qustion as in this particular. One object to be attained by a to how to cut off the power of sale in such cases. For
in these cases the parties cannot “re-convert," nor The Supreme Court of Michigan, whose judgment does the mere bringing of a suit by one devisee for we are reviewing, says of this writ, in answer to the partition estop the executor. So that reconciling the argument, that being regular on its face, it should other matters we still have to ask, if it be true that
protect the officer: “No doubt the writ in this case partition can be made in the case stated, how do we must be regarded as fair on its face. Under the genextinguish the power of sale?
eral law relating to attachments, where the suit is beAfter a somewhat exhaustive examination, we have gun by that writ, the affidavit is attached to and in been unable to substantiate the statement of Judge legal effect becomes a part of it; and if then the affAndrews above quoted. It was not necessary in that davit is void the writ is void also. But under an case for him so to have held.
amendatory statute passed in 1867, which permits the issue of the writ in pending suits, the affidavit is filed
with the clerk, and the officer to whom the writ is isOFFICER PROTECTED BY PROCESS FAIR ON
sued is supposed to know nothing of it. Comp. L., ITS FACE.
643. It was under the amendatory statute that the writ in this case was issued, and an inspection of its
provisious shows that the writ contains all the recitals SUPREME COURT OF THE UNITED STATES.
that the statute requires." NOVEMBER 12, 1883.
Here then we have a writ which is fair on its face,
issued from a court which had jurisdiction both of the MATTHEWS V. DENSMORE.
parties and of the subject matter of the suit in which Where a writ of attachment, issued by a court having juris- it was issued, and which was issued in the regular
diction of the parties and the subject matter, is fair on its course of judicial proceeding by that court, and which face, and the officer receiving it is bound to obey it, he is the officer of the court in whose hands it was placed is protected, even though the affidavit filled with the clerk
bound to obey, and yet by the decision of tbe Michion which it is issued is insufficient to authorize the issue.
gan court it affords him no protection when he is sued
there for executing its mandate. N error to the Supreme Court of the State of Michi
We do not think this is the law. Certainly it is not gan. The opinion states the case.
the law which this court applies to the processes and MILLER, J. This is a writ of error to the Supreme officers of the courts of the United States and of other Court of the State of Michigan.
courts of general jurisdiction. The plaintiff in error was mars! of the United It had been supposed by many sound lawyers after States for the Eastern District of that State, and under the case of Freeman v. Howe, 20 How.? that no action a writ of attachment from the Circuit Court levied on could be sustained against a marshal of the United a stock of goods which was the subject of controversy. States in any case in a State court where he acted The defendants in error, who were not the parties under a writ of the former court; but in Buck v. Col. named in the writ of attachment, sued Matthews, the bath, 3 Wall. 334, where this class of cases was fully marshal, in trespass, on the ground that they were considered, it was held that though the writ be a valid the owners of the goods and that the goods were not writ, if the officer attempt to seize property under it liable to the attachment under which the marshal which does not belong to the debtor against whom the acted.
writ issued, the officer is liable for the wrongful seizure To this action the defendant pleaded the general of property not subject to the writ. issue, with notice that he should rely on the writ of In the present case the officer was sued for that very attachment and should prove that the goods were sub- thing, and offered to prove that the property attached ject to be seized under it.
was the property of the defendant in the attachment, When the defendant, who was admitted to be the and was liable to be seized under that writ, and that marshal, as he had alleged, offered in evidence the plaintiff in the present suit had no valid title to it, at writ of attachment, the court refused to receive it, on least no title paramount to the mandate of the writ, the ground that it did not appear by the affidavit on but the State court refused to permit him to make that which it was issued that the debt claimed by the proof. plaintiff in the writ was due. As the plaintiffs in the The ground of this ruling is that because there is a present action were in possession of the goods when defect in the affidavit on which the attachment issued, they were seized under the writ, this ruling of the that writ is absolutely void, and the officer who faithcourt was decisive of the case, for however fraudulent fully executed its commands stands naked before his might have been that possession, the defendant here, adversary as a willful trespasser. in the absence of any valid writ, was a mere trespasser It would seem that the mandatory process of a writ and could have no right to contest the lawfulness of of general jurisdiction with authority to issue such a that possession.
process and to compel its enforcement at the hands of The whole case turned therefore on the trial in the its own officer, in a case where the cause of action and local State court, as it did on the writ of error in the the parties to it are before the court and are within its Supreme Court, which affirmed the judgment of the jurisdiction, cannot be absolutely void by reason of lower court, on the question of the validity of the errors or mistakes in the preliminary acts which prewrit of attachment in the hands of the marshal, and cede its issue. its sufficiency to protect him if the property seized It may be voidable. It may be avoided by proper under it was liable to be attached in that suit.
proceedings in that court. But when in the hands of It is to be observed that this does not present a case the officer who is bound to obey it, with the seal of where the validity of the writ is assailed by any pro- the court and every thing else on its face to give it ceeding in the court which issued it, either by a mo- validity, if he did obey it, and is guilty of vo error in tion to set it aside as improvidently issued, or to dis- this act of obedience, it must stand as his sufficient charge the levy and return the property, or by appeal protection for that act in all other courts. to a higher court of the same.jurisdiction to correct The precise point as to the validity of this writ of the error of issuing it on an insufficient affidavit, but attachment was under consideration in this court in it is a proceeding in a court of another jurisdiction to the case of Cooper v. Reynolds, 10 Wall. 308, in which subject an officer of the United States to damages as a the effect of an insufficient affidavit for a writ of attrespasser for executing a writ of the court to which tachment was set up to defeat the title to land ache owes obedience.
quired by a sale under the attachment. The case has