
    Winslow v. Beal & al.
    [April, 1806.]
    Pleading and Practice — Trespass—When It Lies. — If the injury is immediate, trespass, and not case, is the proper action.
    Public Officers — Presumption as to Duty. — A public officer is presumed to have done his duty until the contrary is shewn.
    The two Beals brought case against Win-slow in the county court, for taking and carrying away, (under colour of office,) a slave belonging to the plaintiffs, for taxes pretended to be arrear. Plea not guilty, with leave to give the special matter in evidence. The jury found a verdict for the plaintiffs for $300; but, on the next day, the court set aside the verdict and granted a new trial, becausé a law, which was then produced, could not be had upon the trial: and the defendant filed a bill of exceptions, stating, that part only of the justices who tried the cause was present when the new trial was granted. Upon the second trial, the jury found a special verdict, which stated, that the slave had been conveyed by John Hamilton by deed of the 30th *of November, 1793, which they find in hsec verba. That the defendant was deputy sheriff for the county in the years 1783, 1784; and that Hamilton, who resided in that county, was indebted to the commonwealth for the taxes of those years. That the defendant distrained the slave on the land of Hamilton in the year 1795, and sold him for the taxes aforesaid. That the slave had continued in the possession of Hamilton, from the time of the conveyance to the plaintiffs, to that of the distress, except for a short time after the delivery of the deed. The county court gave judgment upon the special verdict for the defendant. The district court reversed the judgment; and Winslow appealed to the court of appeals.
    Williams, for the appellant.
    Trespass, and not case, was the proper action, as the injury was immediate, and not consequential. 6 Bac. Ab. 564. But, upon the merits, the law was in favour of the defendant ; because it lay upon the plaintiffs to shew, that there was other property which might have been taken. Rev. Code, PI. edi. 133. It w’as not material, that some of the justices who sat at the first trial were not present when the new trial was granted ; for it was the same court, notwithstanding the change of members.
    Randolph, contra.
    It might have been uncertain, when the evidence should be produced, whether trespass or case lay; and, under that embarrassment, the plaintiffs will not be held to the strictness of the distinction in actions upon cases of that kind. 2 Burr. 1113. Trover would have lain; and as the declaration states all the circumstances, they will amount to a charge of the conversion. A new trial ought not to have been granted in the absence of three of the justices who tried the cause. The plaintiffs were not bound to shew that there was other property which might have been taken ; for it lay upon the defendant to justify his own act.
    ^Williams, in reply.
    The case in Burrows does not support the plaintiffs’ action: for it shews that, if the testimony proves an immediate trespass, the plaintiffs will be non-suit. The declaration contains none of the features of trover; but it is, to’every intent, a special action on the case. It was not necessary, that the same justices who tried the cause should all be present when the new trial' was awarded.
    Cur. adv. vult.
    
      
      Pleading and Practice — When Trespass Will Lié.— Por a discussion of this -question, see the -principal case cited in foot-note to Jordan v. Wyatt, 4 Gratt. 151.
    
   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.  