The opinion of the Court was delivered by
The bill of exceptions exhibits a clear and distinct view of the several questions of ,law raised on the trial of this cause, oh five points. The opinion of the Court was requested by the plaintiff in error. • The questions were distinctly answered by the Court, and it is to these answers he now exceрts.
The first and second were matters of fact, and as such left properly to the jury ; with the just observation, as to the second, that it was not necessary for the treasurer to make out a bill of particulars, if the party knows what the items are, and objects to them in toto ; but if he.demand such bill оf particulars, the party must make it out, and deliver it, before he can sustain an action. The concluding section of the Act establishing a fee bill, is free from all obscurity. “ It shall be lawful for any person to ' refuse payment to any officer, who will not make out a bill of particulаrs, as prescribed by the Act, signed by him if required ; and also a receipt and discharge signed by him if the fees are -paid.” The requisition to furnish the'bill must be made to justify the refusal. The'request is not confined singly to the signing—the Signature of the name of the officer ; the signature is a component part of the bill. This provision was intended as a check on the officer. The'bill and receipt, if the charges exceeded those allowed by the law, would furnish the fullest and most conclusive evidence, on a prosecution for extortion.
The third received a very satisfactory answer from the Court. The informality or irregularity complained.of in the assessment, could not vitiate the sale. The '3d section of the Act of 13th March, 1815, under which the sales were made, declared it incompetent for the purchaser at the treasurer’s sale to give in evidence any irregularity in the assessment or proceedings of the commissioner or treasurer. ' The actual assessment of the lands as unseated, was submitted to the jury as a fact to be decided by them from the evidence.
The fourth point respected separate deeds for each tract. The plaintiff in error contends, that one deed which he offered to prepare himself, would be in conformity to the
The Court of Common Pleas decided, on the ground, that a county treasurer was not included in the 8th. article of
The sound distinction as I understand the law is, that the office is void only as to himself, if he has not taken this constitutional official oath, but not as to strangers. 2 Lev. 242. 4 Com. Dig. franchise f. 29. Acts done by persons who have not taken the oaths, are valid as to strangers, for otherwise not only those who no way infringe the law, but those whose benefit is intended to be advanced by it, might be suffering for others faults where they were no wise privy. 5 Cruise. 159 ; and in England^ ah act is past regularly every year, to indemnify persons in office Who have neglected to qualify themselves according to the Test Act.
In The People v. Collins, 7 Johns. 549, the Court decided, that where one comes to his office by colour of title, his acts are valid, when they concern the public or the rights of third persons Who have an interest in the act done. Wherever the act done by an. officer de facto, has been declared to be valid, it is where some third person claims an-interest or title in the act done ; and I -have not been able after much research,.to find any decision, where such act has been сonsidered valid, in an action by the officer de facto claiming for an act done by himself. From the short note of the case referred to by the counsel of the defendant in error, of Thurstan v. Slatford, 1 Lutw. 377, in the note to Fenwick v. Sears’s administrators, 1 Cranch, 268, I at first thought it would be found" that the officer had taken the oath in the time pre
This distinction between one claiming to be the officer, aryl third persons, is recognised by the Supreme Court of Massachusetts, Fowler v. Bebee and another, 9 Mass. Rep. 231, where Parsons C. J. in the strong and masculine language which distinguishes all his opinions, says, the claimant of office is no-party to’the record, nor can he be legally heard in the discussion of this .рlea, although our decision would as effectually decide on his title to the office as if he was a party. This would be judging a man unheard, contrary to natural equity and the policy of law. From considerations like these, has arisen the distinction between the
The alleged defects in the declaration and statement, it is unnecessary minutely to consider. The verdict clearly cured them all. The statement may be rejected as surplusage or. considered as amere bill of particulars, and cannot vitiate the declaration, nor could it cure a'defective title in the declaration. To proceed by statement and by declaration appears to me to be incongruous ; the two modes will not amalgamate. ‘For these reasons, it is the opinion of the Court, that judgment should be reversed, and a venire facias de novo awarded.
Judgment reversed, and a venire facias ' de novo awarded.