28 Conn. 201 | Conn. | 1859
The motion in arrest raises two questions of
The declaration contains two counts, which are essentially the same. They state that the plaintiffs, a manufacturing ^company in the town of Bristol, liable to be taxed [ *209 ] for their property, were put into the assessment list of the town for 1852, at the sum of $41,200, which, at three per cent., (the rate prescribed by law,) made their list and abstract $1,286 ; which list and abstract, after being duly completed and signed by the assessors, was by them returned to and lodged with the clerk of said town, in conformity with and for the purposes specified in the statute for the assessment and collection of taxes —that shortly afterwards, the defendant, intending to have the plaintiffs defrauded, and for the purpose of compelling them to pay a larger sum than by the assessment they would be required to do, maliciously, falsely and fraudulently, and without color of right, altered said fist and abstract from $1,236 to $1,735, increasing the plaintiff’s"tax $39.92—that on this altered list, at a subsequent term, a town tax was laid of eight cents on the dollar —that a warrant was issued for its collection, and placed in the hands of a collector, who after demand and refusal, levied upon the plaintiffs’ property, which however was soon released, by. the plaintiffs paying, under protest, said excess of $39.92. It further appears from the declaration, that said list and abstract were not returned to and lodged with the clerk of said town, until the 24th day of February, 1853.
A majority of us are fully satisfied that there is here a good cause of action—good after verdict certainly, and, we believe, good on demurrer.
The legislature have provided, by the act just referred to, a mode for ascertaining the burthen or proportion every man is to be obliged to bear' by way of public tax. The annual list and abstract is to be lodged with the town clerk by the 15th day of December, that every one may learn at what his estate is assessed,- and how his list compares with the lists of others, and that he may appeal to the board of relief, if he has any desire to do so. Every person whose name is in the list, and liable to be taxed, has therefore a direct and important interest in the list as returned, and that it remain *inviolate [ *210 jj and unaltered, except by the board of relief. It gives the only rule and measure of his taxes, and if it be
Is it possible, now, that persons liable to be taxed, and who in fact are taxed, according to this perfected list, have not an important interest in its correctness and inviolability, as much so as they can have in any instruments, writings or records ? If these muniments are any of them fraudulently altered, the act, I repeat, is a wrong in itself, and is most certainly actionable if the alteration is followed by personal injury. May a person with impunity go into the office of the depositary of public records and alter and deface them at his pleasure ? Certainly not. It is a criminal act; and if injurious to those who are interested in the record as it was first made, must render the wrong doer liable to pay adequate damages. I say it is a ivrong, because it is the violation of a right, which is the legal definition of a wrong ;—is per se actionable, for nominal damage certainly, and the statute of limitations commences running from the doing of this illegal act. .If, in addition, the act be followed with actual damages, which are natural and proximate as consequences, they must be made good by the wrong doer, unless we are prepared to abandon the first principles of law and natural justice.
It can not be necessary in this case to go further than to make the defendant liable for the damages of which the plaintiffs complain, provided they be, as' I have said, the natural and proximate. consequences of the defendant’s act, as these undoubtedly are ; but, for myself, I can not doubt that here there has been a violation of right which is attended with some legal damage of course, and that this wrong gives a cause of action at once. In Pasley v. Freeman, 3 T. R., 51, the court decided [ *211 ] an analogous principle, broad enough *in its essential character to sustain this position. They held there that deceit accompanied with damage gives a clear cause of action ; and this is the English and American law at this day. Marshall, Ch. J., in Russell v. Clark's Exr., 7 Cranch, 92, says: “ Indeed, if an act in itself immoral, in its consequences injurious to another, performed for the purpose of effecting that injury, be not cognizable and punishable by our laws, our system of. jurisprudence is more defective than has hitherto been sup
We may as well consider here as any where, w-hat we are to understand by consequential damages; when are they so related to the cause to which they are ascx-ibed, as to be, in a legal view, truly ascribable to it, flowing from it, and px-oximate to it. Evex-y judge will agree, that all damages must be th'e result of the injury complained of, whether it consist in the withholding of a legal right or the breach of a duty legally owed to the plaintiff. If they necessarily result, such as the loss of the value of an article of property which is carried away or destroyed, or of a sum of money which is not paid to the plaintiff according to
It was said on the argument, that the damage sustained by the plaintiffs w'as not the natural and proximate consequence of the defendant’s act, inasmuch as, before the collector levied on the property of the' plaintiffs, the defendant stated to the selectmen the facts in the.case, and did not himself thereafter positively direct the collector to proceed. But he took no steps to 'forbid him, and left in his hands uncanceled and unaltered the
*We will next inquire whether the plaintiffs have, [ *214 ] in seeking redress, adopted the proper form of action. It is claimed that the action should have been trespass, if anything, and not case. Greenleaf, in the second volume of his Treatise on Evidence, section 224, lays down the rule thus : “ The distinction between the actions of trespass ui el armis and trespass on the case is clear, though sometimes refined and subtle. By the former, redress is sought for an injury accompanied with actual force. The criterion of trespass vi el armis is force directly applied, or vis próxima. If the proximate cause of the injury is but a continuation of the original force, or vis impressa, the effect is immediate, and the appropriate remedy is trespass vi et armis. But if the original force or vis impressa has ceased to act before the injury commenced, the effect is mediate, and the appropriate remedy is trespass on the case. Thus, if a log thrown over a fence were to fall on a person in the street, he might sue in trespass, but if, after it had fallen on the ground, it caused him to stumble and fall, the remedy could be only by trespass on the case. The intent of the wrong doer is not material to the form of the action ; neither is it generally important whether the original act was or was not legal.” Blackstone, in the third volume of his Commentaries, page 208, lays down the rule in -the same way and nearly in the same words. So did this court in Gates v. Miles, 3 Conn., 70, 71. But I need not further particularize, for the rule is the same in all the books, though its application is not always equally clear and certain. It was much discussed in Leame v. Bray, 3 East., 598, and more fully in Scott v. Shepherd, where the defendant threw a lighted squib into a market house, which, after passing from one to another, each repelling it in self-defense by giving it a new direction, struck the plaintiff and put out his eye. The court held, by a divided opinion, that trespass was the proper form of action and not case, because they held that the injury was done by a continuation of the first force, and so was immedi
Now let us apply this doctrine to the case in hand. Did the alteration of the plaintiffs’ list, and the levy on their goods, result from the same identical force, uninterrupted and unspent ? Were the acts the same ? or even parts of the same transaction ? or were they not different and distinct, depending on other forces, if I may so express myself, and on the determination and acts of other persons—first this defendant, then the selectmen, and then the magistrate who issued the warrant? We think the latter. Suppose for a moment, the plaintiffs, not knowing of any thing wrong, had been called upon to pay and had paid their tax, including the excess, without a levy; would they not have had a cause of action against the defendant, though there was no trespass or force at all? We think they would ; and if so, it must have been in the present form of action, not in assumpsit, for the defendant had not and never had in his hands money belonging to the plaintiff's. Besides, as to any forcible act of the defendant to rest an action of trespass upon, there is no reason to believe that, when he altered the plaintiffs’ list, he anticipated any violent action towards them by any officer of the law. It is much more probable that he expected that the tax would be paid without objection.
And even if the defendant may be treated as a direct party to the levy, it by no means follows that the plaintiff's may not, at their option, go for the alteration of their list and the consequent damages, rather than for the trespass, or the levy.
Not that we would intimate that there is not any longer a clear distinction between the turn forms of .action, trespass and trespass on the case, or that in the former the force [ *216 ] may *always be waived and the latter brought for the damage. But we know there are numerous cases where an election between these remedies is given, and where the trespass may be waived; and perhaps this case, were the inquiry important, might be found to be one of them. In some of
Professor Greenleaf, in the second volume of his Treatise on Evidence, section 226, uses this language: “In this last case Lord Denman, Ch. J., proceeded upon the general ground, that though the taking of the goods was a trespass, the owner was at liberty to waive it and bring case for the consequential injury arising from the unlawful detention. Indeed, it is difficult to discern any reason why the party may not in all cases waive his claim to vindictive damages and proceed in case for only those actually sustained, or why he may not as well waive his claim for a part of the injury, and go for the residue, as to forgive the whole.
In Blin v. Campbell, 14 Johns., 432, the plaintiff sued in case, and it appeared that the defendant, being a trooper, had wounded the plaintiff in the leg by negligently firing a pistol. The court held that if the injury was attributable to negligence, though it were immedia-t.e, the party injured had his election, either to treat the negligence of the defendant as the cause of action and declare in case, or to consider the act itself as the injury and to declare in trespass. The same is laid down in 1 Chitty on Pleading, 127, and the authorities there cited sustain the position. The same is decided in Rogers v. Imbleton, 5 Bos. & Pul., 117. Turner v. Hawkins, 1 Bos. & *Pul., 472, Moreton v. Hardern, 4 Barn. & Cress., [ *217 ] 223, M’Allister v. Hammond, 6 Cow., 342, and in Williams v. Holland, 10 Bing., 112. In the last case the judges declare that any cases, such as Leame v. Bray, supposed to be to the contrary, are not inconsistent with their views, or, if they are, are not good law. This class of cases distinctly decides, that the wrongful act of the defendant may be attributed to negligence, and the plaintiff may overlook the direct force. So in cases of seduction, the father or master may sue in trespass with a per quod, or in case for the loss of service. We will not pursue the subject further.
There was a great array of authorities on the argument, chiefly
Nor is it universally true, that for forcible injury under a process -which proves to be void, trespass is the only form of action. In Goslin v. Wilcock, 2 Wils., 302, the court decided that case lies for sneing the plaintiff in an inferior court maliciously, and arresting him, when that court had no jurisdiction of the cause. Lord Camden said, page 307, “ YVe are all of opinion, that if you hold a man to bail in an inferior court, when you know it hath not jurisdiction and with malice, an action upon the case will lie.”
The remaining question is, whether the defendant can shield himself from paying damages, the'damages actually suffered, because he and his brother assessors- were tardy in returning the tax list to the town clerk’s office. It should' have been done by the 15th day of December, but it was not done until the 24th day of February following. The bare statement of the case seems to me to furnish the answer, without the necessity of say
Nor is it proper to allow the defendant to set up in his defence the fact that the plaintiffs might have resisted the collection of the tax if they had been disposed, and, in not having done so, are to be regarded as having paid their money voluntarily, and so as having no right to complain. The assessors returned the list as a true and perfect one, and the plaintiffs had a right to regard it as being so, and in all respects conformable to law, and thereupon to pay their tax accordingly. As well might the slanderer, when sued by some servant for having falsely and maliciously caused him to be deprived of his employment, set up that the contract for service was technically defective. In Benton v. Pratt, 2 Wend., 385, the court refused to allow a similar' objection when urged by a tortious conspirator.
And besides this, a majority of the judges agree with the judge below, that the confirming act of 1855 takes away all objection to the list as being returned too late, and that there is no force in the objection to the retrospective character of the -act. For these reasons we do not advise a new trial.
Motion in arrest to be overruled.
New trial not to be granted.
A dissenting opinion which the .Chief Justice proposes to write, will be inserted at the close of the volume if received in season for that purpose.—It.