p. 394of the said several persons the sums at which their respective houses or lots were assessed, and that they did not, nor did either °f them refuse to pay, but on the contrary thereof, they did, on such demand, pay the sums at which they were respectively assessed, whereby it became unlawful, and contrary to the duty • of Symonds, to execute the warrant, and that he did not, for the cause aforesaid, execute the same; without this, &c. traversing the collection and receipt, by virtue of the authority contained in the warrant, of the said sum of $239,20, in manner and form as in the breach alleged. To these two pleas the plaintiffs demurred, assigning for cause specially, that they traverse matter not traversable, and tender immaterial issues. The same questions were presented by a variety of other pleas put in by the defendants, but the judgment of the court having been pronounced upon the fifth and'seventh pleas, it is deemed useless to state the other pleadings in the cause.
F. Whittlesey, for the plaintiffs.
F. M. Haight, for the defendants.
By the Court,
The act to incorporate the village of Rochester, Laws of 1826, page 112, is not as.explicit as to the duties of the collector. The 6th section directs that a collector be chosen: the 15th requires him to give security ; the 16th limits the amount to be raised for taxes to defray the expenses of lighting the streets and bridges, supporting a night watch and defraying the expenses of any local improvement not otherwise provided for, and to defray contingent expenses. These taxes are to be collected in the same manner as taxes are collected in the county; by the collector of said village, by virtue of a warrant, signed by the president of the village, under the common seal thereof. The, 21st section gives power to the trustees to open streets, &c. in said village, to cause sewers, drains, &c. to be made; and to cause a just estimate and assessment to be made by five freeholders, to be appointed by the trustees, whose certificate, ratified by the trustees, shall be binding on the owners, occupants, &c.; and such owners sháll.pay, on demand, to such persons as shall be
p. 395authorized by the board of trustees to receive the same; or in default of such payment, or any part thereof, it shall be lawful for the board of trustees, by warrant, under the seal of the village, to levy the same by distress and sale of the goods and chattels of such owner, &c. The act is silent in relation to the person to whom the warrant shall be directed, and who shall execute the same; but the collector of the village being designated as the officer to collect the ordinary taxes of the village, in the same manner as collectors of towns collect the county taxes, and such collections being authorized to be enforced by distress and sale, it is reasonably to be inferred that the legislature intended the warrant mentioned in the 21st section should be executed, in case of necessity, by the appropriate officer the
collector ; a constable, as such, I think would have no such authority, without being.specially named as the proper officer.
Before this warrant could regularly issue, there was something else to be done. Until some person appointed for that purpose had demanded payment of the assessments, and payment had been refused, the trustees had not authority to issue a warrant; when issued, the collector, and he alone, had authority to execute it. It is proper to remark, also, that as the trustees had authority, under certain circumstances, to issue a warrant, they had jurisdiction of the subject matter, and if the trustees had issued it without first demanding payment, the collector would be justified in enforcing it, though the trustees themselves would not. It is not the duty of a ministerial officer, nor has he the right to refuse to execute process regular upon its face, and issued by any court or person having jurisdiction. The ministerial officer is not the judge of the regularity of the proceedings of a judicial tribunal. It is not tenable ground, therefore, to assume that the officer is not bound to pay over the money, though he may have received it upon the warrant. If he has received the money in his official character as collector, he is bound to pay it to the treasurer; and on his failing to do so, his sureties are liable. It was not necessary, therefore, in this suit, to state in the breach that the money had been demanded, and payment refused, as these facts were not necessary to justify the. collector.
p. 396The facts admitted by the pleas are, that Symonds was col^ector °f the village, and received the sum mentioned; but it is averred in the pleas that he received from the trustees an appointment to receive the amount oí the assessments in question in the the same instrument which contained the warrant,' and that by the instrument taken all together if the money was paid under the appointment, the warrant could not be executed, and that in fact the money was paid to him, and received by him, as the agent of the trustees; not as collector. This is admitted by the demurrer. It is very clear that the demand mentioned in the statute must precede the issuing of a warrant. It is also clear that any person, as well as the collector, might be designated and authorized to demand payment and receive it. Suppose the trustees had proceeded regularly,' and before issuing a warrant, had constituted Symonds their agent to demand and receive the amount of the assessments, and he had received such amount and kept it, tefusing to pay it over; could there be any doubt that his sureties for his conduct as collector were not responsible ? They were sureties for his official conduct as collector, but not in any other capacity. The plaintiff’s counsel contend that the collection was made by virtue of the warrant: it is so averred in the declaration, but that fact is traversed by the pleas ; and this traverse is assigned as cause of special demurrer, on the ground, that whether the money was received by him as collector, by virtue of the warrant, is matter of law, and can never be a proper question for a jury. If the pleadings present that question purely as a question of law, then the plaintiffs are right; but if it be presented as matter of fact, or even a mixed question, or if matter of fact depend upon it, then it is traversable.
The rule laid down by Mr. Chitty, 1 Chitty’s PI. 587, is, that in general the intent or virtute cujus as by virtue of the said warrant, &c. ought not to be put in issue. That question was discussed in Beal v. Simpson, 1 Ld. Raym. 408. That was an action on the case, for the escape of B. The defendant pleaded that the said B. being in his custody, a habeas corpus issued, and was delivered to him before the escape, and that by virtue thereof he took the said B. out of prison, &c. The plaintiff replied, protesting that the habeas corpus was not de
p. 397livered before the escape, and for replication says, that a habeas corpus issued, tested and returnable of different terms from those stated in the plea ; but after the return of that writ the defendant took the said' B. out of prison; and being out of prison, the defendant by covin procured another writ of habeas corpus, and by color of that writ took B. out of prison; absque hoc, that the said B. was taken out of prison virtute the former writ. The defendant demurred, and contended that the traverse was not good, but was a negative pregnant. The court were divided on the point. Treby, chief justice, held the traverse bad, because virtute cujus is not traversable. Powell, justice, said, when a matter of law is only comprised in a virtute cujus, then it is not traversable ; but matter of fact in the virtute cujus is traversable. He said the time of issuing the writ is traversable ; the delivery of the writ might have been traversed, but that was not traversed, but the taking out of prison virtute that writ; and there may be cases where nothing else can be traversed. The other justices, Nevill and Blencowe, agreed with Powell, that generally the virtute cujus is not traversable, containing matter of law; but when it is mixed with fact, then it may be traversed, and then they said there was matter of fact depending upon it, and for that reason it was traversable. The case now under consideration is a striking one to exemplify the doctrine of the court in that case. The issuing and delivery of the warrant are not traversed, and therefore if no other fact was presented, no other authority shown, virtute cujus, Symonds could lawfully receive the money, it would be a matter of legal inference that the money was received by virtue of the warrant; but the defendants shew another authority, by virtue of which the money might lawfully be received, and which, by the statute, must precede warrant; it is therefore not matter of law in this case, but matter of fact, whether the money was received by Symonds by virtue of the one authority or the other. It therefore becomes a traversable fact. The pleas are in my opinion good, both in form and substance. The appointment by which the defendants say Symonds received the money, might have been given as well to any other person as to him, and has no connection with the office of-collector. The warrant, when issu
p. 398ed, it must be executed by the collector. The liability of the sureties depends upon the fact whether the money was received by virtue of the appointment, or the warrant.
The defendants are entitled to judgment on the demurrers# with leave to the plaintiffs to reply, on payment of costs.