
    * Jacob Little versus Joshua Greenleaf and Others.
    One living in the town of A, and hiring a store in the town of B, in which lie deposited a cargo oi salt for sale, and also owning and fitting vessels in B, is liable to be taxed therefor in B. But for his business done there as an underwriter, and for his shares in banks, insurance companies, and other incorporated funds of that kind, he is taxable in the town of A.
    
    Assessors are not liable to an action of trespass for overrating one who is liable to be taxed by them.
    
      Trespass for false imprisonment.
    The parties agreed to the following facts: The defendants were assessors for the town of Newburyport, duly chosen and sworn, for the year 1805. On the 18th of September in that year, they assessed a state, county and town tax on the inhabitants of Newburyport, and others liable, &c. The plaintiff, on the first day of May, ! 905, was an inhabitant of the town of Newbury, in said county, and was then engaged in trade and merchandise in said Newburyport, sc • far as having, on the 19th of April preceding, with one Joseph Patch, hired of one Joseph Marquand two apartments of stores on the said Marquand's wharf in said Newburyport, at the rate of one dollar per week, which stores were solely and exclusively occupied by said Little and Patch from the said 19th of April until the 1st of November following ; they having deposited therein a quantity of salt, being the cargo of the ship Alfred, which ship and cargo were owned, three fourths thereof by Little, and one fourth by Patch. The said ship lay at said wharf from the said 19th of April, to the 30th of May following, the said owners paying dockage for her. Marquand occasionally sold part of the said salt as agent for the said owners, the keys of the stores being left at his house for their convenience. Besides the plaintiff’s part of the ship Alfred of 339 tons, he also owned the whole of another ship of 310 tons, and one half of a brig of 170 tons, and of her cargo of sugar and molasses. He regularly cleared and entered his said ships and their cargoes at the custom-house in Newburyport, and repaired, manned, and victualled them there for their respective voyages ; and never hii-ed or occupied any store, shop or wharf in the said town of Newbury, in the transaction of any of his business aforesaid. The value of his proportion of the said ships, and cargoes, and stock in trade, so by him employed and [ * 237 ] used as aforesaid in said * Newburyport, on the same first day of May, was not less than the sum for which he was assessed and taxed in said Newburyport for the same year. The plaintiff was also owner of 1400 dollars of the stock ' of an insurance company in Newburyport, was a director of the company, and usually frequented their office. And besides his interest in the said stock, he was a large underwriter on private policies of insurance in Newburyport; and used also to get his own vessels and cargoes insured in that town.
    The defendants, by public advertisement,
    notified the inhabitants and others liable to pay taxes in Newburyport, to bring in to them invoices of their taxable property; and afterwards assessed the plaintiff’ for the goods, wares, and merchandises, and stock in trade, ships and vessels by him owned, used and employed in Newburyport 
      in manner aforesaid, and for his proportion of the said stores, by him and the said Patch so hired and occupied: they filed copies of the valuations and assessments by them made in their office: they made their warrant in due form of law, directed to one Jonathan Kettett, the collector of taxes for said Newburyport, legally chosen and sworn; who demanded of the plaintiff the taxes so assessed upon him, and afterwards the same taxes not being paid, nor any personal property shown to him whereon to levy the same, he arrested the plaintiff, and restrained him of his liberty until he paid the said taxes.
    In the last valuation of estates, made in pursuance of an act passed March 6th, 1801, the town of Newbury was charged for 119 tons of shipping, and for 3000 dollars stock in trade, as the property of the plaintiff, then an inhabitant of Newbury, and for such other estate, personal and real, as he then owned in that town. And the said town of Newburyport was not charged, in said valuation, with any personal property whatever belonging to any inhabitant of Newbury.
    
    In the year 1805, the plaintiff was assessed in Newbury for 325 tons of shipping, and for 6600 dollars stock in trade * and other personal property. A nd it was the intention [ * 238 ] of the assessors of Newbury to assess him, for the same year, for all his personal estate.
    If, upon the foregoing facts, the Court should be of opinion, that the plaintiff was entitled to recover in this action, the defendants were to be defaulted ; otherwise the plaintiff was to become non-suit.
    The cause was argued at the last November term in this county by Dane and Livermore for the plaintiff, and Jackson and Banister for the defendants.
    The counsel for the defendants relied, for their justification, upon the general tax act for the year 1805 ; in which it is recited, that “ there are many persons within this commonwealth engaged in trade, who negotiate much business, and hire shops, stores, and wharves, in towns, &c. other than where they dwell, and whose property and ability can be better known to the assessors of the several towns wherein such business is transacted, than to those of the town, &c. where they may dwell; ” and it is therefore enacted, “ that for such goods, wares, and merchandise, or other stock in trade, ships and vessels, as are sold, used or improved in the towns, &c. other than where the owners thereof may dwell, such owners shall be respectively taxed therefor in such town, &c., and not where they dwell or have their home; and they shall be respectively held to deliver, on oath or affirmation, if required, a list of their whole taxable estate to the assessors of that town, &c where they may dwell on the said first day of May, distinguishing what part thereof is taxable elsewhere ; and in default thereof they may be doomed by said assessors. Provided, however, that this clause shall in no case be so construed as to enable the assessors of any town, &c. to assess an inhabitant of any other town, &c. for any property charged thereon in the last valuation.”
    
      The plaintiff’s counsel insisted,
    that it was incumbent on the defendants to show that his taxable property was increased [ * 239 ] between the years 1801 and 1805. Without this *the proviso of the tax act, in effect, forbids the defendants to tax the plaintiff at all. As to the difference of tonnage, of which the plaintiff appears to have been possessed in those two years, no inference ought to be drawn from it, since it is well known that assessors seldom value objects of taxation at more than one third of its quantity or value; or, supposing it to have been increased, the addition might have been purchased with other parts of his personal property.
    Further, it must appear that the party, to be liable to be taxed, must transact his business in some shop or store, or on some wharf. In the present case, the plaintiff hired a part of a store merely as a place of deposit for his mechandise, but he did no business there. Nor does it appear that more than one of his vessels was at Newburyport during the year.
    This new provision of the tax act must be construed strictly, or much confusion will follow. Personal property is naturally and regularly to be taxed with its owner, as cattle are taxed where owned, although they may be depastured in another town. Though the case may not find any store, shop, or wharf in Newbury, where the plaintiff transacted his mercantile business, the presumption is "'cry strong that he did it at his dwelling-house.
    
      jFor the defendants
    
    it was said, that if the plaintiff" was taxable for any property at all in Newburyport, it could not be a question here whether he was overtaxed or not. If he had a right to complain on that score, he must apply to another forum for relief. But having given no list, he was doomed by the assessors, and he cannot now ask for an abatement of his taxes. The facts incontestably show an increase of his shipping since 1801. He hired and occupied a store; he sold merchandise from it by his agent. There can be no difference, whether the hiring was by the week or by the year; so that it was hired for the sale of goods.
   The action stood over for advisement to this term ; and now

The Court

observed, that this action of trespass vi et armis, could not be maintained against the defendants as assessors, * if the plaintiff was by law liable to be assessed by them for [ * 240 ] any estate. Certainly not merely because he is overrated. So that the only question to be decided was, Was he liable to be taxed in the town of Newburyport at all ? On this question they had no doubt. He hired a store in that town, and he sold merchandise, and he fitted ships there. For all the stock in trade, which he negotiated and managed in Newburyport, he was regularly taxable there For his business as an underwriter, and for his shares in the stock of insurance companies, banks, and other incorporated funds of that kind, he was to be taxed by the assessors of the town of Newbury, of which he was an inhabitant.

It appears, then, that the only subject of the plaintiffs complaint is that he was overrated; and for this he should have pursued the remedy provided by the statute.

Plaintiff nonsuit.  