The defendant justified the trespass complained of, under the assessment list of the town of Chester, and under certain ordinances of the president and trustees of the town, by which it became his duty, as collector of the town, to collect a certain amount of taxes assessed against the plaintiff, and that *83for that purpose, he distrained the goods and chattels in the declaration mentioned. In his first replication to this plea, the plaintiff sets forth the sixth section of the town ordinances, which maltes it the duty of the collector to collect the taxes, for which purpose he should call upon such persons named in the list, as might reside or be found in the town, and proceeds; “ and if the tax upon any property shall not be paid by the person liable therefor, when demanded by the collector, or within ten days thereafter, he shall, forthwith, proceed to collect the same by distraining such of the personal chattels of the person from whom such tax is due, not exempt from execution, as will be sufficient to satisfy the tax, together with the costs of selling the same at public vendue.” The replication also avers, that the plaintiff was a resident of the town, and that the defendant did •not, ten days before he seized the goods and chattels, make a demand of him for the taxes. To this replication a demurrer was filed and sustained, and this is assigned for error. We now think this demurrer was improperly sustained. The authority of the collector to distrain for taxes depends entirely upon the ordinance, and he can only distrain at the time and in the manner which that authorizes. That gives him authority to distrain in a particular event, and after certain steps have been taken. He is first to call upon the resident tax-payer for the tax, and if it is not paid when demanded, or within ten days thereafter, then he shall proceed to collect by distress. The ordinance does not make it his duty to distrain till after the expiration of that time, nor is there a word of authority for him to do so, till the duty arises. There is no general authority for him to proceed at his discretion or convenience. The collector was acting under a special authority; and, in that case, he should be able to show, affirmatively, the warrant for his proceeding. He might as well have proceeded to make the distress, before he made the demand, as before the expiration of the ten days. The one was contemplated by the ordinance as much as the other, before the duty was imposed or the authority vested, to make the levy. We think the provisions of this ordinance are substantially the same as those of sec. 35, chap. 89, Rev. Stats.; and although, in the case of Shaw v. Dennis, 5 Gilman, 419, *84we thought that statute would bear a different construction, upon further reflection, we think it our duty to recall what was then said by the court, on the construction of that statute. Upon another ground, the objection to the pleas in that case was properly overruled.
To the same plea, the plaintiff also filed the general replication de injurié, &c., to which a demurrer was also sustained, and, we think, properly. It would be a useless labor to attempt to review all the cases where this replication has been sustained or overruled. To reconcile them all would be impossible. There are cases undoubtedly sustaining the rule insisted upon by the plaintiff’s counsel, that this replication is proper, except where the plea justifies by matter of record; and yet, cases are not wanting, where a special replication has been required to a plea, setting up a defence in no way depending upon matter of record. It must be admitted, that many of these distinctions are more artificial than substantial, and do not contribute very essentially to the promotion of the ends of justice. So long, however, as we are to look to the rules of the common law to govern us in pleading, we are not at liberty to disregard them. The most satisfactory and tangible rule is this: that where the defence sets up matter of positive and absolute right, as the levy of an execution, the service of a warrant, the collection of tithes or taxes, and the like, there a special replication is required; but where the matter set up in defence amounts to but an excuse for the act complained of, and is not the exercise of an affirmative right, as son assault demesne, there the general replication, de injwiá, &c., is sufficient. Lytle v. Lee & Ruggles, 5 Johns. 112; Coffin v. Basset, 2 Pick. 357; Coburn v. Hopkins, 4 Wend. 578.
Judgment reversed.