I have some doubt as to the action; for I am not satisfied that the mistake is not cured by the statute of jeofails; which declares that the omission of vi et armis, or other formal words, shall not vitiate. But I give no opinion upon that point, as I am clear as to several other parts of the case.
With respect to.the objection, that all the justices, who tried the cause, were not present when the new trial was granted, I answer, that it does not clearly appear whether they were or not. But it is immaterial which way the fact is; for the want of the act of assembly upon the trial of the cause was a sufficient ground for awarding the new trial.
The defendant was entitled to judgment upon the special verdict. For the act of assembly gave him power to dis-train the slave, if no other property could be found; and as no abuse of the power is shewn, the plaintiffs have made no case to entitle them to judgment. The county court, therefore, decided rightly; and the district court erred in reversing it. I am consequently of opinion, that the judgment of the district court should be reversed; and that of the county court affirmed.
Carrington, Judge.It is difficult to say what action the plaintiffs intended to bring; but all the facts stated by them are plainly trespass: for the injury, if any, was immediate, and not consequential. Of course, trespass, and not case, was the proper remedy; and therefore, upon that ground, the plaintiffs were not entitled to judgment.
*47But, independent of that, the cause, upon the merits, is in favour of the defendant. For he had a right to distrain for the arrears of taxes; and, where no abuse is shewn, the law prima facie presumes, that a public officer does his duty. The county court, therefore, decided rightly; and I am of opinion, that the judgment of the district court should be reversed, and that of the county court affirmed.
Lyons, President.The declaration states a trespass, and therefore case was, perhaps, improperly brought. But it is immaterial whether that be so, or not: for the verdict shews no cause of action whatever. The judgment of the district court is consequently to be reversed; and that of the county court affirmed.