#### Hoozer *vs*Buckner. Same *vs*Glass. Same *vs*Stites. Same *vs*Landes.

*January*10.

Error, to tiie Caijdwem, Circuit.

Replevin. Trespass,

*Case*39.

Cases stated, pleadings, &c.

*Taxes. Pleadings.*. *Distress, for Taxes.*

Jiojue Simpson

delivered the opinion of the Court.

These four cases present substantially the same question. Two of them are actions of replevin, and the other two are actions of trespass, brought against the plaintiff in error, on account of his having seized and taken into his possession property belonging to the persons who instituted the suits against him.

The plaintiff in error admitted the taking of the property, and attempted to justify it, upon the ground that he was the Marshal of the town of Hopkinsville at the time of the seizure, and the property was dis-trained by him in that character, for taxes due to the Board of Trustees of the town, on property owned within the town, by the several persons whose property he had distrained.

A similar plea was filed in each of the suits, and the pleas having been adjudged bad, upon demurrer, the sole question presented relates to the validity of the pleas.

Under the statute regulating the town of Hopkins-ville, the Marshal is empowered to collect the taxes of *184said town, in the same manner and under the same regulations that Sheriffs collect the county levy and State revenue. The pleas do not allege that the Marshal demanded the taxes, and delivered to the person from whom they were due, an account stating distinctly each article of the demand, and offered to give a receipt for the same before he made the distress, as the Sheriff is required to do by the act of 1796: (2 *Stat. Law,*1461) before he has power to make a distress for county levy or State revenue ,• and it is contended that for this omission the pleas are'defective.

*A*Sheriff is not authorized to make distress for taxes in arrear, until he first deliver or offer to deliver to the person from whom taxes are due, or his agent, if in the county, a statement ot the taxes due, and for what, and tender a receipt, to bo delivered if the taxes be paid. If not in the coun. *185ty, a plea attemp ting to justify the seizure of property should state that fact, as -well as that the taxes .were due and for what — the same law governs in the eolleetion of taxes in the town of Hopkinsville.

*184Upon the other hand, it is argued that this provision of the act of 1796 is not in force, but has been virtually repealed by the acts of 1799: (2 *Stat. Law,*1362) and 1831: (2 *Stat. Law,*1383) neither of which contains it, or imposes any duty upon the Sheriff to be performed by him, as a ¡Dre-requisite to his power to dis-train for taxes due and unpaid.

The two latter acts, however, do not prescribe the manner in which the distress is to be made by the Sheriff, but only the time; and specify the property liable to distress. They contain no provision inconsistent with that in the act of 1796 upon this subject, or that indicates an intention by the Legislature to dispense with the requisitions of that statute, in regard to the acts to be previously performed by the Sheriff to enable him lawfully to distrain.

We think, therefore, the objection to the pleas is a valid one. They do not even contain an allegation that the taxes were demanded, and payment refused, before the distress was made. The authority and power, as Marshal of the town, and the fact that the taxes were due, are relied upon as sufficient of themselves to justifythc distress. But in addition to this, it is essential, in order to sustain the power to make the distress, that the default of the tax-payers should be manifested. To put them in default, the officer must deliver to them a statement of the taxes duo from them, and offer them a receipt for the same, also to he delivered, provided *185they pay the amount due. If they then fail to comply with the demand made by the officer, he has power to make a distress to coerce payment. And as it is incumbent upon him to evince his right to make the distress, he must, if the debtor or his agent do not reside in the county, in the case of a Sheriff, or in the town, in the case of a Marshal, allege that fact as an excuse for his failure to comply in this respect with the requisitions of the statute.

The pleas in these cases are also defective in another particular. They do not, as they should have done, allege that the persons whose goods were distrained, had property within the town of Hopkinsville'-subject to taxation, which had been assessed, and that the distress was made for the taxes due thereon. They -contain an averment that the board of trustees did assess and levy taxes on the real and personal estate and slaves within -the limits of said town, and that a certain named sum was due at the'time the dis tress was made from the person whose property was distrained as his taxes, to the board of trustees of the-town of Hopkins-ville. They do. not even contain an averment that the taxes were due from him according to the assessment which had been made, by which an implication might ■have arisen, that the taxes were due on property owned by him within the town. The pleas ought to show that the alleged debtor had property within the town subject to taxation, the taxes on which he had refused -to pay, after the property had been legally assessed, and the taxes • placed in the hands of the officer for collection. An averment that the taxes were due, without stating how they were due, or that they w,ere due on account of property within the town, is insufficient. The officer must evince his authority to make the distress, by an averment of all the facts necessary to show the existence of a demand for .taxes against the person whose property he seizes, that he has a right to collect as Marshal of the town.

*186
      *Wooldridge*for plaintiff; *Morehead Sf Reed*for defendant.

Wherefore for the insufficiency of the pleas the judg» ments are affirmed.