principle that offices where judgment, discretion, and experience are essentially necessary to the proper discharge of the duties they impose-offices of pecuniary and public responsibility-cannot be held by infants; so, an infant cannot be appointed an administrator or an executor. See 10 Amer. & Eng. Enc. Law, p. 615, and cases there cited. The case of Carow v. Mowatt, 2 Edw. Ch. 58, was a case where the widow, who was an infant, was appointed administratrix of her deceased husband's estate; and the vice chancellor seemed to assume that the appointment was void, saying:

"The appointment may, from personal disability, have been irregular and void; but after such disability is removed, if he will continue to hold the office and act in the trust, a court of equity, regarding him as trustee, will compel him to account for his receipts after the time of arriving at full age, although, no account will be directed in respect to the assets which came to his hands during infancy,"-citing Hindmarsh v. Southgate, 3 Russ. 324.

It would seem to me that the appointment of an infant is absolutely void, not because of any defect in the proceedings by which the appointment was made, or the absence of any facts that the surrcgate was required to determine to justify the issuing of letters, but because the person designated to act as administrator was incapable by law from acting. His act would not bind him individually, and therefore cannot be held to bind the estate. He could not be compelled to account for money that came into his hands during infancy, (Carow v. Mowatt, supra;) and it would seem to me to follow that, the granting of letters being void when granted, in order to constitute the person administratrix, a new appointment was necessary after the disability had been removed; and that would follow from the ground upon which the vice chancellor, in the case above cited, placed the liability of the person appointed administrator for moneys received by him after he became of age. It was not that he was liable as administrator, but because the court of equity would fasten a trust upon him for the moneys that he had received when he was of age, where he assumed to act as administrator without authority. See, also, Hindmarsh v. Southgate, 3 Russ. 326. I think, therefore, in this case, that no valid letters of administration were issued upon the estate of the deceased, and, so far as appears, there is now no legally appointed administrator of this estate. That being so, what is the condition of the parties? The plaintiff, while an infant, made a contract by which she assumed to act as administrator of an estate of which she was not such administrator, and received, upon the execution of that contract, a sum of money from the defendant. I think it clear that had she been an adult, and capable of making a valid contract, and had assumed to act as executor without authority, she would have been personally liable for any injury that the person with whom she contracted sustained by reason of her want of authority; so that, but for her infancy, she would be individually liable to the defendant in case the contract that she attempted to make as administrator was illegal because of her want of authority to act. Such being the case, upon her arrival of age, or within a reasonable time thereafter, she was bound to disaffirm that contract; and she now individually

comes into court, and asks that that contract be declared invalid, both on account of infancy at the time it was made, and because she was induced to execute it by fraud. It seems to me that she has a cause of action, as an individual, to have that contract declared to be invalid. The estate has no interest in the question whether or not she, (the plaintiff,) as an individual, is liable to the defendant for any damage sustained by him because she was not what she pretended to be, namely, the administratrix of that estate. Upon the death of one of the partners, the property of the partnership vested in the surviving partner. The personal representative of the deceased partner did not become the owner of any portion of the copartnership property. He had a right to apply to a court of equity to compel the surviving partner to account for the property that came into his hands, and to pay such representative the share of the deceased partner after the payment of debts. Such relief cannot be obtained in this action, because the personal representatives of the deceased are not parties to the action; but there is, I think, as before stated, a good cause of action in the plaintiff when she asks the court to adjudge that this contract which she made, by which she attempted to act as administrator of the estate, but which was void, as such administrator, because she was not the legally appointed administrator, be declared void as to her individually, and to impose no obligation or liability upon her. I think, therefore, that the demurrer must be overruled, and judgment ordered for the plaintiff, with costs, with leave to the defendant to withdraw the demurrer, and answer over within 20 days, upon payment of costs.

(7 Misc. Rep. 198.)

NORRIS v. JONES et al.

(Supreme Court, Special Term, Yates County. December, 1893.)

1. REPLEVIN-PROPERTY TAKEN UNDER TAX WARRANT-AFFIDAVIT. Code Civil Proc. § 1695, subd. 4, provides that, in replevin for goods taken under a tax warrant, plaintiff must deliver to the sheriff an affidavit alleging "that the taking was unlawful by reason of defects in the process, or other causes specified." Held, that an affidavit is insufficient, as stating a mere conclusion, where it alleges that the process was defective, in that the tax contained moneys which were not legally chargeable, but does not state what moneys were improperly included.

2. SAME-IRREGULARITIES-EXCESSIVE ASSESSMENT.

A school trustee, being authorized to make an assessment for moneys expended by him, (Laws 1886, c. 292,) acquires jurisdiction of the persons assessed in performance of such duty, and an excessive assessment is not void on that ground, but is merely irregular.

Action by Thomas R. Norris against Herbert A. Jones and Josephine E. Jones to recover property taken under a school-tax warrant. Complaint dismissed.

Briggs & Sunderlin, for plaintiff.

M. Fiero and John Gillette, for defendants.

DAVY, J. It appears, from the undisputed evidence taken upon the trial in this case, that the defendant Herbert A. Jones was

v.27 N.Y.s.no.2-14

duly elected trustee of school district No. 2 in the town of Milo, in the county of Yates, for the year 1893; that on the 2d day of March of that year he made out an annual tax list for said school district, and attached thereto his warrant for the collection of the school-district taxes, and delivered the tax list and warrant to the defendant Josephine E. Jones, who was the duly-appointed collector for the school district. After she received the tax list and warrant. she called upon the plaintiff, and demanded the payment of his tax, which amounted to $15.38, which he refused to pay. On the 30th day of March, 1893, she duly levied upon personal property belonging to him to satisfy said tax. The property was at once replevied by the plaintiff; and the question now arises whether the action of replevin can be maintained.

The plaintiff contends that the Code of Civil Procedure (sections 1690--1695) authorized the bringing of this action to replevy his goods, because the assessment was for a larger sum than the trustee was authorized by law to make. Section 1690 provides that an action to recover a chattel cannot be maintained when the chattel was taken by virtue of a warrant against the plaintiff for the collection of a tax assessment or fine issued in pursuance of any statute of the state or of the United States, unless the taking was, or the detention is, unlawful, as specified in section 1695. Subdivision 4 of that section provides that the affidavit to be delivered to the sheriff must particularly describe the property to be replevied, and must state that it has not been taken by virtue of a warrant against the plaintiff for the collection of a tax assessment or fine issued in pursuance of a statute of the state or of the United States, or, if it has been taken under color of such warrant, either that the taking was unlawful by reason of defects in the process or other cause specified, or that the detention is unlawful by reason of facts specified, which have subsequently occurred. The affidavit which was delivered to the sheriff states that the taking and detention of plaintiff's property was unlawful by reason of the following defects in the process, to wit:

"The said tax contains moneys to be raised thereby which were not legally, properly, and justly chargeable to said district. It also alleges that the defendants were not legally competent to hold the offices, as claimed by them."

The affidavit was wholly insufficient to authorize the taking of the property from the collector. It did not state any facts showing that the taking of the property was unlawful by reason of any defects in the process, or by reason of facts which had subsequently occurred. The allegation is but a mere legal conclusion. Talcott v. City of Buffalo, 125 N. Y. 280, 26 N. E. 263; Emery v. Baltz, 94 N. Y. 408. It should have specified or stated what moneys were included in the assessment that were not legally chargeable to the district, so that the court could determine, from the facts alleged, whether the taking was unlawful or not. The provision of the Code upon this point is imperative, and any attempt to evade its letter or spirit will be regarded as an attempt to evade one of the vital prerequisites of the issuing of the writ.

Assuming that a portion of the tax was unauthorized, that fact

would not, in my opinion, make the taking of the property by the collector unlawful, providing the trustee had jurisdiction of the subject-matter, and authority to issue the tax warrant. The trustee of every school district in this state is authorized by law to expend, in the necessary and proper repairs of the schoolhouse under his charge, a sum not exceeding $20 in any one year; and he may also expend a sum not exceeding $50 in the erection of nec essary outbuildings, when authorized by the school commissioner or the superintendent of public instruction; he is also authorized to make repairs and abate any nuisance, and provide fuel, pails, brooms, and other implements necessary to keep the school clean, and make it reasonably comfortable for use; he may also provide for building fires and cleaning the schoolroom, and he may expend for books a sum not exceeding $15,-all of which shall be a charge upon the district. When the trustee is required or authorized by law to incur any expense for school purposes, the statute makes it a charge upon the district, and he may raise the amount thereof by tax in the same manner as if a definite sum to be raised had been voted by a district meeting. Laws 1886, c. 292, § 1; 1 Birdsey's Rev. St. p. 565, §§ 135, 136. The statute also provides that the trustee's warrant for the collection of the district tax shall have the like force and effect as a warrant issued by a board of supervisors to a collector of taxes in a town; and the collector to whom it is delivered for collection shall be thereby authorized and required to collect, from every person in such tax list named, the sum set opposite to his name, in the same manner as collectors are authorized to collect town and county taxes. Laws 1867, c. 406, § 18; 1 Birdsey's Rev. St. p. 570, § 164. The laws seem to be quite uniform in all the states that goods seized on legal process for the collection of a tax by a tribunal having jurisdiction of the subject-matter and of the person cannot be retaken from the officer by a writ of replevin, even though the warrant may have issued erroneously or irregularly. This rule is founded upon the necessity for the prompt collection of the public revenue. The remedy afforded the individual, by law, in this state, whose property is seized to satisfy a tax levied under an unconstitutional law, or levied without authority or jurisdiction to levy it, is clear. He may bring replevin for his property seized to satisfy such tax, or he may, in a proper action, make the collector, or those under whose direction he acts, personally liable for the damages resulting to him by reason of such tax. The warrant in this case was in the form prescribed and adopted by the department of public instruction, and used in the school districts throughout the state. It contains all the requirements prescribed by law. Code Pub. Instr. 1887, p. 331. The tax list was attached to the warrant, and contained a list of the names of the taxable inhabitants of the district, and the items for which the tax was imposed. There was nothing upon the face of these papers to notify the collector of the alleged irregularity, and hence it was her duty to execute the warrant. Railroad Co. v. Roach, 80 N. Y. 340; Hersee v. Porter, 100 N. Y. 410, 3 N. E. 338; Elevating Co. v. McNamara, 50 N. Y. 653, 654; Railroad Co. v. Kane, 72 N. Y. 614.

The learned counsel for the plaintiff conceded, upon the arguinent, that the trustee was legally authorized to expend, and assess upon the taxable property of the district, a portion of the money included in the tax assessment; but he contends that a portion of the assessment was unauthorized, and therefore the whole tax assessment is void. There is always the legal presumption that public officers will properly discharge their duties, and, when a party claims that a public officer has failed to discharge a statutory duty, the burden is upon him to show that such duty was not performed. It appears from the evidence that a portion of the amount expended by the trustee, and included in the tax levy, was ordered by the school commissioner, and a portion thereof the trustee was authorized by statute to raise, irrespective of any vote of the district, and a portion of the tax was ordered by a previous vote of the district. The law, therefore, made it the duty of the trustee to make out a tax list, and to issue. a warrant for its collection. In performing this duty he acquired jurisdiction of the plaintiff and of the subject-matter; and, being clothed with legal authority to make the assessment, any irregularity, such as making it for a larger sum than he was authorized by law to make, did not invalidate the whole assessment; it was simply an irregularity that could have been corrected in proceedings by certiorari under the Code. Section 2141.

Or the plaintiff might have requested the trustee to correct the error, if any, in the tax list, who, with the consent of the superintendent of public instruction, was authorized under the statute to make the correction. Laws 1867, c. 406, § 22. There is a clear distinction between a case of erroneous or over assessment and a case of an assessment without any authority, such as an assessment made under an unconstitutional law, or the assessment of property which the law has made no provision for assessing. The distinction is the same, in effect, as an erroneous judgment of a court having jurisdiction of the person and subject-matter and the judgment of a court having no such jurisdiction. To illustrate still further: A tax warrant, regular on its face, issued for the collection of a tax levied under such erroneous assessment, would afford protection to the officer serving it, while a tax warrant issued for the collection of a tax levied under an unconstitutional law, or without authority of law, would afford no protection whatever. The distinction between an erroneous and an illegal assessment is clearly stated in Weaver v. Devendorf, 3 Denio, 117, and in National Bank of Chemung v. City of Elmira, 53 N. Y. 49. The former case was an action by a clergyman for an alleged refusal to allow him the statutory exemption. It appeared that he had more property than the amount of the exemption, for which he was liable to be taxed. It was held that the assessors had jurisdiction to act, and were not liable for making the assessment too high, however erroneous their decision might have been. It is a well-recog nized fact that more or less errors have always been connected with the assessment, levy, and collection of taxes, and, if every taxpayer is at liberty to controvert the correctness of his assessment by replevying property levied upon by the collector, it would stay the