Bassett v. Governor

11 Ga. 207 | Ga. | 1852

By the Court.

Nisbet, J.

delivering the opinion.

[1.] The bond of the Collector is a good statutory bond. The Act of lWi December, 1809, does not embrace Collectors. Whether intentionally or inadvertently, they are omitted. It applies only to Clerks of the Superior, Inferior and Courts of Ordinary, Sheriffs, Coroners and County Surveyors, and requires them to make application to the Governor for their commissions within twenty days after their election. Cobb’s N. Dig. 200. By the Act of 1811, Collectors and other County officers, are required to take their oaths of office and give bond within ten days after they are notified of the arrival of their commissions. Cobb’s N. D. 202. And by the Act of 1823, Collectors and other officers are required to apply for and obtain their commissions and certificates, and qualify within the time and manner theretofore pointed out by law; and if they do not, then- offices are to be considered vacant,, and they are declared to be ineligible. Cob's N. D. 209. I do not doubt but that the Act of 1823, by a fair construction, may be considered as extending the provisions of the Act of 1809 to Collectors, and therefore, it is the duty of the Tax Collector to apply to the Governor for his commission within twenty days from his election; and when the commission is sent forward to the Inferior Cowt, to qualify within ten days from the time of his receiving notice of its arrival. And if it is not applied for within the time, or if it is, and it is sent out by the Governor, and he is duly notified of its arrival and he does not qualify within the ten days, his office will be declared vacant and he be ineligible, unless his failure to do so was occasioned by the act of others, over which he could have no control. The position taken against this bond is, that it was not taken within thirty days from the election of the officer, giving him twenty days to apply for his commission, and ten days to qualify after it issues. A bond executed after thirty days, it is said, is not taken according to the Statute, and therefore the office is vacant and the bond void; and inasmuch as this officer was elected in January and this bond bears date in June, it is void as a Statutory bond. Without yielding our assent to the conclusions, in their full extent, to which the counsel come, or stating wherein they are properly subject to modification, the necessities of this case require us to say only, that it does not appear from this record, but that the application for the commission was made within twenty days, and the officer gave his bond within ten days after it was sent forward, and he had notice of its arrival. Certain things the law requires the Collector to do: he must apply to the Governor for his commission within twenty days, and when the commission issues and he has notice, he must qualify within ten days. These are burdens put upon him; and he must do these things at his peril. As to the first— applying for his commission — it does not appear to us that he failed to apply. We must presume that he did apply. As to the second, the obligation to qualify does not arise until the commission issues. We know of no law which requires the Governor to issue the commission as a matter of course, as soon as application is made for it Although it is to be considered, that in accordance with the policy of these. Statutes, looking to the prompt qualification of County officers, and through that to the efficiency of the public service, he will issue the commission so soon as applied for; yet, there is no law which requires him to do -so. He is required, by the Act of 1810, to commission Collectors and Receivers, but no time is specified within which it shall be done. Cobb’s N. Dig. 200. If ther.e is no reason operating upon the mind of the Governor for deferring it, he will commission them — that is, he will send out the commission, with a dedimus to the Justices of the Inferior Court, who will deliver it, upon the officer’s giving bond. And no doubt, the intent of the law is, that he will do so without delay, generally. But if there are reasons which the Governor esteems of sufficient weight for postponing it, he is not prohibited by law, from doing so ; provided, always, that when issued at all, he must issue it so early as to give the Collector the allotted time to qualify, before the first of July; at which time the law requires him to proceed with the collection of the taxes. Cobb’s N. D. 1073. Such is the usage of the Executive office, grown up under able men, upon a fair considation of the Statutes. The Act of 1804 requires the Governor to take bond of the Collectors, and transmit to the Inferior Court a dedimus for its execution. The dedimus is usually accompanied with a commission; but this Act fixes no time within which itshall be done. By the 5th section of the same Act, the Collectors and Receivers are made responsible to the Executive Department, and are amenable to such rules, in conducting the duties of their offices, as the Governor may think necessary and proper. Cobb’s N. D. 1046. Wherein it would seem, that discretion, of course limited by the positive provisions of lawr, is given to the Governor, as to the general supervision of, and control over these officers. We have had occasion to say in other cases, and we shall say in this case, that the collection of the taxes is left by our laws, to be enforced mainly by the Executive. For these reasons we affirm the judgment of the Court below, deciding that this is a good statutory bond. If good as a statutory b.ond, the question made as. to the right of trial by Jury, upon the assumption that this proceeding was on a voluntary bond, need not be considered.

[2.] The next ground of error which I notice, is the ruling of the Court, that the sureties of the Collector are liable upon this bond for a failure to pay over the County taxes. It was made payable to the Governor, and is the general bond given by the officer for the faithful performance of his duties as Tax Collector. The counsel for the plaintiffs in error, hold that it is intended to secure the payment of the State tax alone, and that the sureties are not hound to make good a defalcation of their principal, therefore, in failing to pay over the taxes raised for County purposes. They insist that by law, the Justices of the Inferior Couri are required to demand, and the Collector is required to give, a separate bond, to secure the faithful execution of his duties, so far as the collection and settlement of the County taxes are concerned; and inasmuch as this is so, the bond to the Governor is only to secure the faithful performance of his duties, so far as the collection and settlement of the State taxes are concerned. A necessary deduction from these propositions is, that the sureties on the bond to.the Governor, are not liable for a failure to pay over the County taxes. To settle this question, it is not necessary to go behind the Act of 1804, which was of force when this proceeding wms instituted. By the 5th section of that Act, Collectors are required to enter into bond, with sufficient securities, before they enter on the duties of their office. By the 6th sect, the Governor is required to take bond of the Collectors, with security, “ for. the due performance of all the duties required of them.” The Justices of the Inferior Court, in the same section, are charged with the duty of receiving and causing the bond to be executed, and of seeing to it, that the security is sufficient. They are “to approve” the sureties. Cobb’s N. D. 1046. This bond is “for the due performance of all the duties required” of the Collector — required by law. Not one, or a part of these duties, but all. It is his oficial bond, intended to insure fidelity in the execution of his trust, and thus to protect the public from loss. The law makes no specification of his duties; nor does it limit the extent of the obligation assumed by the sureties. They undertake for him, that he will duly perform all the duties which the law devolves upon him ; and if he makes default in any, they agree, by signing his bond, to make it good. It is into such a league, and no less, that they come. This is clear from the law under which the bond is taken. Their obligation is co-extensive with the objects and ends contemplated by law, in requiring bond and security. It is furthermore manifest, from the very terms of their contract. In this very bond they agreed, that if their principal, Richard Bassett, Tax Collector of the County of Bibb, for the year 1849, shall not well and truly do and perform all and singular the duties required of him, in virtue of his office, as Tax Collector, according to law and the trust reposed in him, then they will be bound to the Governor in the sum of $18,000, to make good his default. It is not for them, therefore, to demur to any liability, which grows out of a failure on his part, faithfully to do and perform any duty required of him by law, in virtue of his office. And what are the duties required of him ? To collect and pay over, by a specified time, the State taxes. Nor is this the whole of his duty. He is required expressly, by the Act of 1821, to collect the extraordinary taxes levied by the Justices of the Inferior Court for County purposes; and the same Act provides a compensation for this service. Cobb’s N. D. 184. One of the duties then, devolved upon him by law, in virtue of his office, is to collect and pay over the County tax; to do which, faithfully, his ^sureties have guarantied. They signed his bond with knowledge of the fact, that it was a part of his official duty to collect ■ and pay over the County taxes; for they are presumed to know and to contract in reference to the public laws of the State.

This is not all. By the Act of 1810, the Justices of the Inferior Court are authorized to issue, in their own names, for the use of the County, execution against any Tax Collector and his sureties, who may be in default for the County taxes. Cobb’s N. D. 1056. When in default for the State taxes, execution is issued by the Comptroller. Here is a remedy provided for the Counties. The Act of 1810 was re-enacted in 1815. Cobb’s N. D. 1062, And with greater clearness and stringency by the Act of 1825. Cobb’s N. D. 1066. It is not to be questioned therefore, that the sureties are liable on this bond, unless their liability is relieved by the Act of 1821, which authorizes the taking of a separate bond for the County tax. We are clear that it is not. The Act is in the following words: “It shall be the duty of the Tax Collector of any County in which an extraordinary tax may be levied in the manner provided in the foregoing sections of this Act, upon being required to do so by the Justices of the Inferior Court, or a majority of them, to give bond and approved security to the Justices aforesaid, or their successors in office, in a sum not exceeding double the amount of the extraordinary tax assessed, conditioned for the faithful collection and payment of the same into the Clerk’s office of the Inferior Court; there to remain subject, to the order and application of the Justices of the Inferior Court, for County purposes, &c.” Cobb’s N. D. 184. The bond authorized by this Act is accumulated security for the collection and payment of County taxes. It does not supersede the liability of the sureties on the general official bond, but provides a security in addition thereto. They are liable, with or without any second bond, upon this undertaking, that the Collector shall perform all the duties of his office, one of which, we have seen, is the collection of the County tax. It is made the duty of the Collector to give this additional bond, when required so to do, by the Justices of the Inferior Court. They are not required by the law to demand it. It is within their discretion to require it or not. This is obviously the intention of the Act. It does not make it a qualification for entering on the duties of his office. The giving the other bond is a precedent condition to performing the duties and receiving the emoluments of the office. And if he presumes to collect taxes without giving it, he is subject to a heavy forfeiture, and a severe penal infliction. This bond he is bound to give, only “ upon being required so to do, by the Justices of the Inferior Court, or a majority of them.” They demand it, if in their judgment the interest of the County requires it, and not otherwise. This discretion is left with them for good reasons. The amount of the County tax is not ascertained when the general official bond is given. It may be more or less. The first bond may or may not be amply sufficient. The sureties, or some of them, may be solvent when it is given, and become insolvent, or may depart the realm and eloign their property. The taking of a second bond being a matter of discretion, if they do take it, I should hold the sureties still bound on the first, with the sureties on the second ; and if, as in this case, they do not take it, we are well satisfied that the sureties on the first bond are liable.

[3.] At the January Term, 1850, the Inferior Court passed an order,-reciting, that Richard Bassett, Tax Collector for the County of Bibb, had collected the sum of $5024 57 cents, and had refused to pay over the same to the proper authorities entitled to receive it; that the same was levied for County purposes, and as such collected, and was now in his hands, and had been duly demanded of him ; and directing that execution issue against him and his sureties, (naming them) in terms of the Statute, for the aforesaid sum of money, with interest at the rate of 25 per cent, and that the order be entered upon the minutes of the Court. Upon this order, execution issued against Bassett and his sureties, for the sum of $5024 57 cents, with 25 per cent, interest and cost, in the name of George W. Towns, Governor and Commander in Chief of the Army and Navy of this State, for the use of the Inferior Court, for the County of Bibb. In the progress of the trial, divers exceptions were made upon this order and the execution issued upon it. It is insisted by counsel for the plaintiffs in error, that this order and execution are void, because,

1st. The order was granted at January Term of the Inferior Court; and there is by law, no such term for the Inferior Court of Bibb County.

2d. Because the order was taken and the execution issued for a larger sum than, as turned out in evidence, the Collector had collected and held in his hands at the time. And as part and parcel of this position, they say, if they are void in part, they are void as to the whole.

3d. Because the execution ought to have issued in the name of the Justices of the Inferior Court, for the use of. the County of Bibb, instead of Geo. W. Towns, Governor, &c. &c. for the use of the Inferior Court of Bibb County.

4th. Because the execution was made returnable before the Inferior Court, wdien it ought to have been returned to the Superior Court, the Inferior Court having no jurisdiction of the cause.

5th. Because the execution does not follow the judgment or order upon which it is founded.

All these grounds were assumed before the Court below, either in the illegality, or as exceptions to the admissibility of the execution in evidence, and were overruled. It is not material how the questions are made — they are here for consideration.

The principles upon which public agents act, where they are authorized to issue process for the collection of public money, wThen stated, afford a sufficient answer to several of those exceptions. The execution in this case was issued by virtue of the Act of 1825. The first section is as follows: “In all cases where there maybe any tax due to the County, in the hands of the Collector of any County, and collected by the Tax Collector of any County, and not paid over to the proper authority on or before the first Monday in December next, after the same may be collected in any year, the Justices of the Inferior Court, or a majority of them, in each County be, and they are hereby authorized, immediately to issue execution against any Tax Collector and his securities, so neglecting or refusing to pay over such tax.” The 2d section makes him liable for 25 per cent, interest. Cobb’s N. D. 1066.

[4.] The power conferred upon the Justices by this Act, is not conferred upon them as a Court, but as individuals. They are the agents of the State, made so by this Act, for the purpose of collecting the public funds in the hands of the Collector. Whilst they are for the purposes of each County more immediately, yet the whole State is interested in them. Each of the Counties have as much interest in the County taxes, of all the rest, as each County has in the social, educational and monetary prosperity of all the rest. County taxes are raised by legislative authority. They can be raised no other way. They are a part of the public revenue of the State. To collect them when in arrear, the Legislature has clothed the Justices of each County, or a majority of them, with the power of issuing a process. It is called an execution. It is in the nature of a distress. It issues without a trial, and without a judgment. The State moves by its agents, directly upon the Collector and his sureties, and seizes and sells their property by a process which it calls án exeóution, and which is an execution. It is the process by which the Collector is forced, and his sureties who are his vouchers, are forced to perforin a duty, which he and they owe to the State, and that is to pay up the public funds in arrear. It is the same kind of power with that with which the Comptroller is clothed, and with that with which the Collector himself is clothed. See Doe ex dem. Gladney vs. Deavors, lately decided at Columbus, ante, page 81. Upon this view of the duties and powers of the Justices in this regard, it is quite immaterial whether the order was passed in term time or in vacation. It was an act of the individuals and not of the Court. So also, upon this view, the execution is properly returnable before themselvesand the two objections, that the order was issued at an impossible term and returnable before them at the subsequent March Term, fall to the ground.

The law makes it the duty of the Collector to pay in the County taxes on or before the first Monday in December. If he fails to do it, he and his sureties are immediately liable to process of execution. The execution is to be issued by the Justices. They are to determine what amount is not paid. Clearly there is but one way for them to ascertain that fact, and that is, to give him credit for what is paid of the County assessment, and issue execution for the balance. It is an unfair construction of the Act of 1825, to say that it intends that execution shall issue only for the sum that he has in fact collected and holds in his hand. If this be the true construction, then, the Collector is perfectly safe, if he folds his hands and deolines to collect a single dollar, or having collected the taxes, puts them out of his hands in the purchase of property or in any other way. It must be admitted, that the Act is framed with singular inaptness of phraseology. It declares that in all cases where there may be any tax due to the County, in the hands of the Collector, and collected by him, and not paid over to the proper authorities, on or before the first Monday in December, execution shall issue. The letter bears the construction of plaintiff in error; but that construction makes the Statute suicidal. It is ambiguous, and therefore open to construction, and we must look to the subject matter and the objects in view, to get at the legislative intention. The subject matter is the County taxes, and the object is to provide means of collecting them out of the Collectors and their sureties. This object could not be effected, if execution could issue only for the taxes collected and in hand. To give any proper effect to the Act, we • must infer that the Legislature meant to say, that the amount due to the County from the Collector should be the sum for which the execution should issue ; and when not paid over by the first Monday in December, that it should be considered as collected and in hand. This is not an unreasonable presumption, when it is recollected with what promptly coercive powers the Legislature has clothed the Collectors. It would be curious indeed, if, to such a process as this, and in the face of this Act, and in the teeth of the policy of all our legislation upon these subjects, the Collector in arrear on the first Monday in December, could come in and say, I have not collected these taxes ; or, I have collected them, but they were not in hand, for I have paid them for land and negroes. His duty is to collect and pay, by the first of December; and if he has not done so, it is the duty of the Justices to issue execution at once, for all the taxes on that day unpaid. So we hold that there is nothing in the exception that the execution issued for more than was proven to have been collected, and that if it be bad in part, it is bad as to the whole amount.

Nor do we perceive that there is any force in the objection that the execution does not follow the order. In point of fact it follows the order very closely. I cannot find wherein there is a variance. It is right that the Justices should keep a record of their proceedings. The order was necessary as a memorial of their action. But it is nota judgment. It was not necessary to pass such an order, as the basis upon which an execution might issue. It issues upon the balance due by the authority of the law. If so — and about that there is no doubt — if there was a variance, the variance would not be fatal to the execution. This objection goes upon the idea that the execution issues upon a judgment, as in cases of judgments rendered upon trials at Law or in Equity. If this order be a judgment then, all the exceptions which assail it, which I have been considering, ought not to have been considered; because illegality cannot go behind the judgment, but reaches only matters in discharge of the execution.

If this proceeding had been instituted against Bassett and' his securities, on a bond given under the Act of 1821, the execution would then have issued in the name oí the Justices of the Inferior Court, for the use of the County of Bibb, as counsel contend this execution ought to have been issued; because, that bond is taken, payable to the Justices of the Inferior Court. This execution is issued to charge Bassett and his securities on his general official bond, which is made payable to the Governor. It follows the bond, and was legally issued in the name of the Governor, for the use of the Justices of the Inferior Court of the County of Bibb. The Governor is the obligee of the bond, and the Inferior Court, as agents of the County and trustees of its funds, are the users.

[5.] We think that the Court was right in instructing the Jury that the plaintiffs in’error were entitled to a verdict only for such orders as were paid over or tendered. The Inferior Court had authorized-the Collector to receive County orders of a certain description in payment of County taxes ; and they instructed their attorney to allow them in settlement with the Collector, for the balance due the County.' Upon the trial he claimed a credit for certain of these orders, although not turned over to the Court, or tendered to them or their attorney in payment, or brought into Court and there tendered. These orders could not be allowed in his favor, without being taken up by the Court — without subjecting them to the necessity of paying them twice. They are negotiable, and were presumed to have been transferred by the Collector and still outstanding. The Court did not err in holding him to produce them. Certainly it was a demand of extraordinary modesty to ask to be credited with orders which he had not returned to the Court, and which he did not offer to their acceptance out of Court, and which he could not produce in Court; simply because he had received them from the tax-payers. Just as well might he ask a credit for money received for taxes, which he had not paid over and which he does not bring into Court and plead as a tender.

[6.] The exception, that the Jury which tried the cause was not the Jury stricken, was waived in the argument. When the cause came on to be tried, counsel for the plaintiff in error objected to all and singular the array, upon the ground that they being citizens of Bibb County, were interested in the event of the issue, which being overruled, they excepted. This is a challenge to the polls, propter affectum. Counsel for the plaintiffs in error rely upon the case of The Mayor, &c. of Columbus vs. Goetchius, 7 Geo. R. 139. That case is distinguishable from this. It was trover for a slave, brought against the Mayor of Cdjumbus; and certain members of the Jury who tried it, were held incompetent, because they were citizens of Columbus and interested in the event. We held them interested, because they were'Ntiable to be taxed to pay the verdict. The verdict in that case against the Mayor, fyc. was virtually a verdict against the citizens whom that corporation represented ; to pay which, the citizens were liable to be taxed. Here, the citizens of the County, if interested, have not in the event of this suit, so direct ah interest. If the plaintiffs in execution in this case, fail to recover of the Collector and his sureties, it creates no charge upon the County — fixes no claim, to pay which, the citizens may be taxed. Such failure may or may not make it necessary for the County to assess and levy additional taxes. The fund, if received, go.es into the County treasury, and each citizen of the County, and I may add, each citizen of the State is, in some sense, interested iti its being paid over. But it is not so large an interest, or so direct and immediate an interest as the citizens of Columbus have, in the event of a suit brought against their corporation, and which they may be taxed to pay. But farther, it was competent in that case, to get a Jury from the County, not citizens of Columbus. So that excluding the citizens of Columbus, did not defeat altogether the plaintiff’s remedy; but here, if the citizens of the County are excluded, the plaintiffs in execution have no remedy, and the administration of the law fails. There is nothing truer and nothing sounder, than that Jurors must be omni exceptione majores. Interest in the issue to be tried is a good and sufficient ground of challange. No man can sit in judgment in his own case. Natural reason — • natural justice, and all good social policy, forbid such a thing,

and the Common Law will not permit it. No matter how slight the interest which a Juror may have in the issue, if he has any,the Common Law will not permit him to try it. The law will not trust the rights of parties to the passions of mankind. The Sheriff who impannels the Jury — the Jury and the witnesses, must be indifferent between the parties. Thus profound is the sense of the importance of impartiality, which our civilization entertains in the administration of the law. “ The law, (says Lord Mansfield,) has so watchful an eye to the pure and unbiassed administration of justice, that it will never trust the passions of mankind in the decision of any matter of right. If, therefore, the Sheriff, a Juror, or a witness, be in any sort interested in the matter to be tried, the law considers him as under an influence which may warp his integrity or pervert his judgment, and therefore will not trust him.” 3 Burrow, 1856, ’7. 12 Mod. 669. Hob. 87. 1 Salk. 396. 2 Johns. R. 194. 1 Bay, 230. 8 S. & R. 444. 2 Tyler, 401. To exclude a juryman, it is not necessary that he be entitled to a part of the recovery. His incapacity arises from a bias in the facts which he is to try; “ and whatever be the facts which that bias touches, he is incapable of trying those facts.” Burrow, 1857. We are not disposed to relax this Common Law rule, except in cases situated as this is. I am rather inclined to the opinion, that upon the Common Law principles stated, the exception was well taken in this case. According to those principles, I do not see but that the Jury ought to be held as having, in the facts to be tried, a disqualifying interest. The main fact is the indebtedness of the Collector to the County. If found for the plaintiffs in execution, the fund is in hand for the purposes of the County — the repairing and building of bridges, the maintainance of the poor, education, &c. — and ready to be applied in discharge of engagements which, it is fair to presume, the County has already made, upon the faith of the assessment. In that event, it is also fair to presume that no other or farther assessment will be necessary to meet those engagements. But if found for the defendants, it is to be presumed that further assessment may become necessary to meet those engagements. Under such circumstances, is it right to trust the passions of the taxpayers to try the issue ? The Supreme Court of New York excludes Jurors, under very similar circumstances. In a Quitam, action to recover usurious interest, one moity of which, by Statute, goes to the use of the poor of the town where it was received, that Court would not permit inhabitants of the town to try the action. 2 Johns. R. 194. It must be obvious, however, that the interest of the Jury in the case in hand, is slight, remote and uncertain; and that the presumptions of a bias growing out of it, extremely weak. It is scarcely greater than that which any citizen has in good and effective government, or in the general administration of justice. It is no greater than that which Jurorshave in the trial of criminal offences, any portion of the penalty for which, goes to the County. In such cases, I have not known in this State, the competency of the Jury to be questioned. Such being our view of the character of the interest of the Jury in this case, I proceed to state the grounds upon which just such a case as this is, is not, in Georgia, within the operation of the Common Law rule. I remark first, that this is a tax collection case. To secure the payment of the public revenue, more than the ordinary powers, as we have in this opinion before shown, are conferred upon the agents of the Government; and the citizen has been brought under some severe limitations of great and fundamental principles. For example, execution issues against tax payers and Tax Collectors without a hearing, and without a judgment. When a tax payer is in default for the State tax, the Judiciary is forbidden to interfere between him and the State, and he is not entitled to a trial by Jury — the zise, of the trial by Jury, before the Constiiution of ’98, being subject to that limitation. These exceptions to the usual course of administration, spring out of an inexorable State necessity, in the allowance of which, the wisdom of years has proved the general good to consist. Why should not the same necessity justify a relaxation of the stringent rule as to the qualifications of Jurors, in cases which involve County taxes; for they, also, are in a just view of them, a part of the public revenue? But we do not rest this case here. By the State Constitution, civil causes, with some exceptions, within which this case does not fall, are to be tried in the County where the defendant resides. There is no provision in the Constitution and Laws for a change of venue. This cause can be tried nowhere but in the County of Bibb, where all the defendants reside, and if not tried there, it cannot be tried at all. If citizens of Bibb are incompetent to try it, then it follows that the administration of the law utterly fails, and the State cannot compel the Collector to pay over the public money in his hands. In view of these things, we hold that the Legislature, when it authorized the collection of County taxes from the Collector and his sureties, had in view the fact that issues might be made to be passed upon by a Jury of the County, and that the laws thus authorizing the collection, operate a repeal of the Common Law, in such cases, so far as the amount of interest which the citizen might have in the issue, would, by the Common Law, disqualify them as Jurors. I do not perceive, that in those cases where in this country, the rigid rule of the Common Law has been enforced, the administration of the law would have failed, by reason of the impossibility of trying the cause elsewhere, or by reason of the impossibility of getting a Juiy wholly unexceptionable, where the case was tried. In the case against the Mayor, &c. of the City of Columbus, the administration of the' law did not fail by • excluding citizens of Columbus; because a Jury could be had there from the citizens of the County, not resident within the corporation. In the case cited from Bay, the right of the Court to change the venue was recognized. Even in England, I am inclined to think, that the rule wrould be released in cases like this, when the exclusion would altogether defeat a trial. The very point was made in the case quoted from Burrow. Lord Mansfield, did not determine, but seemed to 'wraive it, by ruling, that as the case was made triable only in the Court of the corporation and by freemen of that corporation, by a law of their own, it was their own fault. His language is as follows: “ it is said that if the defendant’s challenges be allowed, the corporation will be left without a remedy on the by-law. The answer is, that if the fact be true, that they can impannel no Jury but freemen, the fault was their own, in confining the action to their own Court. On the other hand, if they had the power (as the City is a County of itself) to have impannelled non-freemen, it was their own fault that they did not.” 3 Burrow, 1858. In thus ruling, we are sustained by the Supreme Court of Massachusetts. 5 Mass. 90. Our judgment is, that in cases against Tax Collectors, where the interest of the Jury is remote, slight and uncertain, and when their exclusion would defeat altogether the enforcement of the law against them, that the citizens of the County are not disqualified as Jurors, because of that interest.

Let the judgment bé affirmed, generally.