Doolittle v. Doolittle , 31 Barb. 312 ( 1860 )

Balcom, J.

The justice erred in rejecting the tax list and warrant offered by the defendants. The same were regular on their face. The presumption, without proof, is that the tax list and warrant were made out when all the trustees were present, though signed by but two of them. In McCoy v. Curtice, (9 Wend. 17,) it was decided that two trustees may issue a warrant for the collection of a tax, and the presence of the third trustee at the issuing thereof will be presumed,' until the contrary be shown." This principle is too well set- ' tied to be questioned. (See 3 Denio, 249; Id. 594; 1 Comst. 79.) The statute is that “the warrant issued and annexed to any tax list or rate bill, shall be under the hands of the trustees of the district, or a majority of them.” (1 R. S. 4th ed. 903, § 144.) The tax list itself need not be signed by the trustees. The signing of the warrant, to which the tax list is annexed, is sufficient. The warrant offered in evidence by the defendants in this case was therefore valid on its face. And being valid on its face, it justified the collector in taking the plaintiff’s cow, even if the order made by the board of supervisors was void. This principle is clearly established. (See Alexander v. Hoyt, 7 Wend. 89; Abbott v. Yost, 2 Denio, 86.) As the warrant was a justification for the collector who took the cow) by virtue thereof, it protected those who aided him in taking her. It seems that the collector needed assistance, for German.Doolittle tried to prevent him taking the cow. Chief Justice Savage said, in Elder v. Morrison, (10 Wend. 128,) that “whenever a sheriff or constable has power to execute process in a particular manner, his authority is a justification to himself and all who come in his aid.” (10 Wend. 138. 1 Cowen’s Tr. 2d ed. 514 and 515.) The rule is general, and rests on, principle, that process, which justifies an officer in taking property, protects all who aid him in taking the same. For the foregoing reasons the judgment of the justice, in the action, should he reversed with costs; and, as the defendants paid the judgment, they are entitled to restitution.

[Broome Special Term, April 17, 1860.

Decision accordingly.

Balcom, Justice.]