
    ARTHUR vs. WILSON.
    Nov. 10.
    Trover and conversion against A. who seized & sold the property as an excise officer.
    It was error to refuse the defen’t. leave to give the act of congress in evidence.
    
      From the Jessamine Circuit Court.
    
   Opinion of the Court, by

Judge Trimble.

THE act of congress, (1st vol. Laws U. S. p. 325, § 42,) which was offered in evidence by Arthur, who was defendant in the inferior court, ought to have been permitted by the court to be read as evidence to the jury. From the whole complexion of the bill of exceptions, made part of the record, it appears that Arthur took the horse, for which the action of trover and conversion was brought, as an officer of the excise. The act of congress, before recited, under which he acted as an officer, provides, that all actions brought against such officers for any wrongful taking, or violation of duty, shall be brought within three months from the time of the wrong done; and that such officer may plead the general issue, and give the act in evidence.

The policy of the excise law is not a question with the court; and it seems to us very extraordinary, that the officers acting under that law should be prevented from protecting themselves by its provisions. If such a decision were correct in the present instance, in no other instance could those officers have protected themselves; for then they could not produce the law in evidence, even to show that an excise was laid, and that officers were appointed by law to collect it, This would be a judicial repeal of the act.

We are, therefore, of opinion the inferior court erred in rejecting the said act of congress as evidence, and in instructing the jury that the plaintiff’s action was not barred thereby; and consequently, that the court erred in refusing a new trial for such misdirection.

Wherefore, it is considered that the judgment of the court below be, and the same is hereby reversed, annulled and set aside; the verdict of the jury is also set aside, and the cause remanded to the court from whence it came, there to be placed on the issue docket for a new trial to be had between the parties. It is further considered, that the defendant in error pay to the plaintiff his costs in this court expended.  