Page:Federal Reporter, 1st Series, Volume 6.djvu/158

 146 FEDERAL REPORTER. �It is contended by the defendant that the change of pos- session does not depend upon the legality of the assessment of these taxes, there having been in fact a distraint warrant issued and the property seized under it and sold ; that the possession was thereby changed by legal process. I cannot agree with leamed eounsel for defendant in this proposition. The change of possession whieh should work a forfeiture of this policy should not only be a change of possession in fact, if it be by virtue of legal process, but it must have been a change of possession by virtue of valid legal process. If it were not a valid legal process it would be of no binding force upon him or anybody else. The parties did not con- template by this provision any change of possession which might be brought about by prOceedings in the nature of legal' proceedings, or under the forma of law. It could not have been contemplated by the parties that if an officer of the court should take an execution issued without judgment, and levy it upon and sell this property, that this would have been a change' of posseseion by legal process. Such a process would not be legal. And so in this case, if there, had been no legal assessment of taxes by the commissioner of internai revenue, if, under the law, he had no power to make such a,n assessment of taxes as that upon which the distraint war- rant issued by which this property was seized and sold, the issuing of the distraint warrant, the seizure of the property by virtue of it, and the sale under it,iwefe, as to this plain- iiff, void, �It is said, however, by eounsel for defendant that the inva- lidity of this assessment cannot be shown by the plaintiff in this proceeding; that it cannot be attacked collaterally; that it can only be reached by appeal to the commissioner of internai revenue. The nature and character of these assess- ments were very fully discussed in the case of U. S. v. Clink- ^nheard, 21 Wall. 65. In that case the court below held as is claimed by the defendants. The case was taken to the sp'preme court of the United States upon error, and the judg- ment of the court below was reversed. Justice Eradley, in •deli-^ering the opinion of the court, spoaking of the nature of ��� �