61 N.H. 620 | N.H. | 1882
In Davis v. Clements,
In Kelley v. Noyes,
In Johnson v. Allen,
The reasoning in these two cases is strongly in favor of the view that a collector's warrant is not returnable process. The statute now in force in regard to the powers of collectors has stood, substantially without change, since 1791, except the provision giving to them the powers by law vested in constables in the service of civil process. For the same reasons that a highway surveyor's warrant was held not to be returnable process, it would seem that a collector's warrant must also be so regarded. The unbroken usage in this state for a century or more, for the collector to make no return of his doings upon his warrant, and generally not to return the warrant itself, is a fact entitled to great weight. The absence of any statute requiring a return is undoubtedly the reason for the usage. It is apparent that the evidence is needed for the protection of the collector rather than of the tax-payer. For the information and protection of the latter, provision, in case of a distress, is made for a particular account of the taxes, property sold, and expenses, to be delivered to him upon demand, and in case of an arrest, for a copy of the warrant, with the amount of the tax and fact of commitment, to be delivered to the jailor. G. L., c. 58, ss. 7, 9. In Davis v. Clements the surveyor's return of his doings was held inadmissible, although the defendant could not testify in his own behalf, and may have found it difficult to prove by disinterested witnesses that he had pursued the requirements of the statute. The necessity for holding the warrant returnable process is less now than it was before the statute was enacted permitting parties to testify. Laws 1857, c. 1952.
A sheriff's return is conclusive evidence of all acts which the *622
statute requires him to do in the execution of process entrusted to him. A collector's return, if admissible, would by analogy be conclusive. But it is not perceived how, in this case, the plaintiff was injured by the evidence, which was received. The defendant was compelled, in order to make out his defence, to prove by other testimony the same facts which the plaintiff claimed he should have incorporated in a return. The plaintiff was confronted with the defendant and his witnesses, and had the opportunity by cross-examination to test their credibility before the jury. The plaintiff could not complain of the method of proof, because it was most to his advantage. If it was essential to prove the defendant's doings in the sale by his return, it would have been competent to allow him by amendment to return upon his warrant the same facts that he proved to the jury. Avery v. Bowman,
In Massachusetts it has been held that a collector's warrant of distress to the sheriff need not recite the facts which authorize the collector to issue it, but the officer may prove the facts necessary to constitute his authority to collect the tax. Cheever v. Merritt, 5 Allen 563; Sherman v. Torrey,
In Tidd v. Smith,
In the present case the defendant proved the posting of notices at the hotel known as the American House and at the post-office in Dover, and the court ruled as matter of law, that, prima facie, both might be regarded as public places. No evidence was introduced as to the character of either place. In Tidd v. Smith the court held, as matter of law, that a shoemaker's shop was not a public place within the meaning of the statute. The court said, — "The general understanding of the community, on a question of this nature, is entitled to much respect; and it is believed this understanding has viewed as public places houses of public worship, inns, and perhaps, in some places, shops where goods are retailed." To the same effect is Scammon v. Scammon,
According to the general understanding of the community, the post-office and the American House in the city of Dover must be regarded as public places, within the meaning of the statute.
Exceptions overruled.
BLODGETT, J., did not sit: the others concurred.