#### Benjamin Tores v. The Justices of the County Court of Rowan.

om ^owan‘

A Justice of the Peace appointed to receive the lists of taxable property, has no right to add to the list any article of taxable property not returned by the owner.

If the owner fail to attend at the time and place appointed to receive the lists of taxable property, the Justice may, under the act of April 1784, make out a list for him, to the best of his knowledge;

If the owner omit in his list a part of his taxable property, the Sheriff may collect the tax upon the property omitted ; hot he will make such collection at his own risk, and if wrongfully made, the owner has his remedy against the Sheriff.

At August term, 1811, of Rowan County Court, Benjamin Tores came into Court, and prayed that a certain billiard table returned as his property in the list of taxable property in captain Wood’s district, be stricken out, he not having made a return thereof to the Justice to whom he delivered his list of taxable property. Hia prayer was disallowed, and from this judgment he prayed an appeal to the Superior Court, which was refused. He then applied to one of the Judges of the Superior Court for a writ of certiorari, that the proceedings might be certified to the Superior Court, and his motion there considered. His application for the writ of cer-tiorari was founded upon the following affidavit:

“Benjamin Tores maketh oath, that having erected, he kept a billiard table in the town of Salisbury, during the year 1809, and duly accounted for and paid the tax on the same,. That, intending not to keep the said billiard table, for use after the expiration of the time for which he had paid the tax, he shut up his house and did not permit any games to he played, nor any use to be made of the said table, for some time previous to the first day of April, 1810. That Gen. John Steele, esq. one of tire Justices of Iiowan county, having been appointed by the County Court, to receive the lists of taxable property in the town of Salisbury, and its vicinity, for the year 1810, this deponent waited on him at the proper time and rendered a list of Ids taxa-*168Me property for that year; which list was drawn up by this deponent, subscribed and sworn to in the presence of the said John Steele, esq. and delivered to him. ■ That in this list the billiard table aforesaid was not included. He was asked.by the said John. Steele if he did not in- ' tend to return his billiard table as part of his taxable property ; he answered that he did not, for the reason aforesaid, that he had not used the said table, nor permitted it to be used since the first day of April, then last past, nor did he intend to use it afterwards for the purposes-of play. This deponent further states, that notwithstanding- this declaration and the list before mentioned, of this deponent’s taxable property for tlie year 1810, subscribed and sworn to and delivered to the said John Steele, the said billiard table was, by the said John Steele, lisl-ed and returned to the County Court of Rowan, as part of this deponent’s taxable property for the year 1810, without any other proceedings being had ag-ainstthis deponent than those before mentioned, and -without his direction or consent.”

He then set forth in his affidavit an account of his motion in the County Court, to have the billiard table stricken out of the list, and of the refusal of the Court to allow this motion ; of his praying an appeal to the Superior Court, and the refusal of the County Court to grant an appeal.

The writ of certiorari being granted, and the record certified to the Superior Court, the case was sent to this Court for the opinion of the Judges upon the question. Whether a Justice of the Peace appointed to receive the lists of taxable property, has a right to add to the list any article of taxable property not returned by the owner ?

Locke, Judge,

delivered the opinion of the Court:— In deciding this question, it becomes necessary to examine the acts of Assembly which prescribe the duty of the. Justice in receiving lists of taxable property, and the duty of the owner in returning his list. The first act on the subject, is that of April If 84, which, after directing ’’that a Justice of the Peace shall he appointed to take in the lists of taxable property, in each captain’s company, and requiring him to give notice of the time and place of receiving such lists, prescribes in the 4th clause, the *169duty of the owner, as follows : “ The inhabitants of the respective districts, in each county, shall attend at the time and plade to be appointed, and shall return on oath, in writing, to the Justice appointed to receive the same, a list of all the taxable property which to him belonged, or of which he was possessed on the first day of April then last past.” The act then prescribes the oath which the Justice is to administer to him: <eYou do swear or affirm, that this list by you delivered, contains a just and true account of all the property, for which, by law, you are subject to pay taxes, to the best of your knowledge and belief.” The 7th clause directs the Justice to return such list to the County *Couvt.*The 8th clause imposes a penalty on those who fail or refuse to return such list: ,£lf any master or mistress of a family, his or her agent, manager or attorney, after due notice given as aforesaid, shall fail or neglect to attend and return inventories of his or her taxable property in manner before mentioned, each and every person, so failing shall forfeit and pay the sum of fifty pounds, and shall also pay a double tax. The number of polls, &c. belonging to the person neglecting as aforesaid, to be reported by the Justice, to the best of his knowledge.”

By this act the duty of the owner and the duty of the Justice are clearly defined j and it is only in cases where the owner fails or neglects to attend and return a list, that any latitude or discretion is given to-the Justice of making a return, *to the best of his knowledge,*for the delinquent. The law evidently intended to vest in each individual the right of making out his own list, and hind him by the solemnity of an oath to do it truly. "Where, therefore, an individual tenders to the Justice his list, and swears to it, the Justice is bound to receive it and return it as the true list. He has no right to add to this list a single article. Indeed, to delegate such/ a power to a Justice of the Peace, would be to expose property to his will and *pleasure;*for by the return the ad; *170djtion made by the Justice appears as the act of the party, and the Sheriff is bound to collect the tax, or pay it himself. There is no doubt, if a Sheriff discovers that an ¡1Hiivp]ua] iias omitted to return a part of his property which is taxable, that he may collect the tax from the owner $ but such collection is made at his own risk, and if wrongfully made, the party has his remedy against the Sheriff. But where the Justice makes an addition to the list, it appearing to be the list returned by the owitfr, he must pay the tax, let it be just'or unjust, and has no remedy for the injury sustained. Without, therefore, giving any opinion whether, in this case, the billiard table was taxable, we say that the Justice, by adding it to the list returned by Tores, has exceeded his authority, and that Tores is not bound to pay the tax in consequence of his return ; that, therefore, the writ of certiorari ought to be sustained, and the supersedeas issued as to the collection of the tax, by virtue of such return, be made perpetual. We do not intend to restrain the. discretion of the Sheriff in collecting this tax, if he choose to encounter the risk, and proceed upon the ground that the billiard table was liable to tax, and Tores has omitted to return it. Tiie law has given him a discretion on the subject, and he may proceed, if he be willing to risk his own liability for such collection.