Seaman v. Benson , 4 Barb. 444 ( 1848 )

By the Court, H. Gray, J.

The important question in this case is whether, under the power given to the trustees of school districts by 1 R. 8. 478, § 102, to renew warrants, for the collection from delinquents of such sum or sums of money as remain unpaid, they have the power to issue a new warrant for the same purpose. In Fulsom v. Streeter, (24 Wend. 269,) it was held that the renewal of a warrant, was equivalent to issuing an original warrant. Nelson, J. said : “ The renewal is in fact but a re-issuing of process,” and he perceived “ no reason against regarding it as an original issuing.” And in Smith and others v. Randall, (3 Hill, 498,) the court held that the renewal was in effect a new warrant. Bronson, J. said, by the words “we renew it,” they in effect gave a new or original command to levy.” No form of renewal is provided by statute. Executions issuing from justices’ courts are required to be renewed “ by an endorsement thereon to that effect.” But the statute in this case makes it “ lawful for the trustees to renew such warrant in respect to such delinquent persons(1 R. S. 473, § 102;) leaving the trustees at liberty to adopt any method that shall be in conformity with the statute. The renewal of a warrant is the renewal of the command contained in it. By it the same power is given to the collector, the same time within which to collect, and the same responsibilities are imposed upon him, as if it was an original warrant. And I am unable to perceive the substantial difference between the renewal of it by a repetition of the command in the form of a new warrant, and renewing it by endorsement upon the back of the original.

Session laws of 1839, page 304, section 5, was cited on the argument, to'show that the trustees had no power to renew the warrant, without the approbation of the town superintendent of common schools. But see section 13 of “ an act amendatory of the several acts relating to common schools,” passed April 17, 1843, requiring the written approbation of the town superintendent whenever more than one renewal of the warrant shall become necessary. This act relieves the case of all doubts in relation to one renewal of the warrant, and that was all that was made in this case.

It was insisted that a portion of the tax for which the warrant was renewed had been paid, and that the warrant, having been issued for too much, the sale under it was void. If the whole tax had been paid, then the sale upon the warrant would have been void. The plaintiff in error was confessedly delinquent in the payment of all but a very small amount of his taxes; and if the warrant was issued for more than was due, his remedy is not in trespass or trover for the property sold ; because the property was rightfully taken for so much as was due. If it was taken or sold for too much, his remedy is in case for the injury sustained, or in assumpsit against the trustees for the excess of moneys in their hands arising out of the sale, over and above what was sufficient to pay the amount unpaid.

The plaintiff in error also insisted that the trustees should have produced the rate bills and warrants. If the plaintiff, when before the justice, had stopped with the parol proof of the warrants when he had shown sufficient to connect the trustees with the conversion of the cow in question, and had then objected to parol proof of its contents as a justification, his objection should have been sustained ; but he did not do so. On the direct examination, he not only proved that the cow was taken by a warrant under the hands of the trustees, but he went further, and proved by parol the contents of the rate bills, and of both the old and new warrants, for the purpose of showing the warrant invalid; in relation to which the witness was fully cross-examined without objection. So that the contents of the rate bills and warrants, so far as was material or necessary for the purpose of determining their validity, was before the justice. And after the evidence on both sides had closed, and in the fifth point in his argument before the justice upon the evidence thus closed, (and that too after the defendants in error must have made their argument,) the plaintiff insisted that the trustees had not shown a justification, because they had not produced the rate bills, warrants and other proceedings necessary to give them jurisdiction. The objection came too late. The judgment of the common pleas must be affirmed.