3 N.H. 17 | Superior Court of New Hampshire | 1823
delivered the opinion of the court
The statute of February 8, 1791, entitled “An act for .4 regulating towns and the choice of town officers,” sec. 11, provides, that town meetings shall be held by virtue of a warrant under the hands and seal of the selectmen, and lhat “ the said selectmen shall in such warrant insert the intent “ and design of such meeting, and the subject-matt er of all “ business, matters and tilings to be considered and acted “ upon at said meeting; and nothing done at said meeting, “ holden upon or by virtue of said warrant, shall he consider- “ ed as good and valid in law, unless the subject-matter “ (hereof shall have been inserted as aforesaid.” 1 N. H. Laws 243.
It is agreed in this case, that there was no mention of raising money in the warrant, under which the town meeting ivas held. The vote then to raise the town and ministes taxes is a mere nullity.
We entertain no doubt, that, although one warrant only was committed to the defendant, it may be considered as several warrants, authorizing him to collect each tax separately ; and had he made the seizure for the purpose of collecting the taxes only, which had been legally assessed, <⅛ warrant would have protected him. Cut the question is, when one general seizure is made for the purpose of collecting several taxes, some of which are legal and some illegal, whether the seizure is to be considered as legal or illegal ?
The case of Crepps vs. Durden & another, (Cowp. 640) is not in point, because it does not appear by the report, that there was only one general seizure on all the warrants. There may have been a several seizure on each warrant.
In the case of Grenville vs. The College of Physicians, (12 Mod. 386) it is said, that “ if one distrains for an unjustitia- “ ble cause, yet when he comes to avow, he need not insist upon the cause for which he bad distrained, but may justify “ for any lawful cause, &c. and the cause for which the distress in truth was, is not traversable.” And it is further said, in the same ease, “ Suppose one has a lego! and an ille-⅛- gal warrant, and arrests by virtue of the illegal warrant, yet he may justify by virtue of the legal warrant.” And in Crowther vs. Ramsbottom, (7 D. & E. 654) it was decided, that in trespass a defendant might justify under a sufficient legal process, although he declared at the time that he acted lor another cause. Comyn's Digest, Pleader 3, K. 14.
It is settled, that trespass will not lie for an excessive distress. 1 Burr. 579, Hutchins vs. Chambers. There is, however, an exception to this rule, for where six ounces of
in an action of trespass for imprisoning the plaintiff until hepaid.Cll 10s. the defendant justified under a warrant to collect .El li and upon demurrer the pica was held bad. 2 Mod. 177, Harding vs. Ferne & a.—6 D. & E. 137, Moore vs. Beamont.
"W here a collector of taxes seized and sold goods under several warrants, and it turned out that some of the warrants were for the collection of legal, and some for the collection of illegal taxes, the assessors were held liable in trespass. 15 Mass. Rep. 114, Libbey vs. Burnham & a.
The rules of law to be deduced from the adjudged cases, seem to be these : — If an arrest he made by virtue of several warrants, some illegal and some legal, if nothing more be done, the arrest may be justified by virtue of the legal warrant. But if the person arrested be detained a moment by virtue of the illegal warrant, if is a trespass. And where goods are seized by virtue of several warrants, some legal and some illegal, the naked seizure may be justified by the legal warrants, although more was seized than was necessary for the purposes of the legal warrants. But if the goods are sold under all the warrants, and the proceeds applied under all, trespass lies ; because, although the legal warrant might justify the seizure, it cannot justify the sale of the goods for the purpose of satisfying an illegal claim.
Such being the law, if. is very clear, that, if the defendant liad avowed the taking under the legal warrant only, he would, have been entitled to judgment ; for it does not appear that he did any thing more than barely seize the goods. But the defendant in this case has avowed the taking for the purpose of collecting all the taxes assessed upon the plaintiff in the year 1819 ; and the question is, whether as some of the causes for which he avows the taking are insufficient, and some sufficient, he is entitled to judgment for a return ? An avowry is in the nature of a declaration, and its sufficiency is to be tested by the rules, which are applicable to declarations.
In the present case, the plaiuti/Ps state, county, and school taxes amounted to fifty-six dollars and seventy-nine cents ; he had paid only twenty-seven dollars : for the difference between these two sums the defendant had good cause of distress ; and we are of opinion, that although he has avowed the taking to be for a greater sum than was due, yet this will not prejudice him ; he stands on the same ground as a plaintiff who has brought his suit for more than is due ; and this shall not prevent him from recovering what is justly due
Judgment, for the defendant.