Ordway v. Ferrin

3 N.H. 69 | Superior Court of New Hampshire | 1824

By the Court.

Our statute provides, that, when goods are distrained for taxes, the collector shall keep the distress, the space of four days, and if the owner, do not pay the taxes and expenses within that time, the collector shall proceed within forty.eight hours, after the expiration of the four days, to sell, at public auction, the distress. In this case, the distress was taken on the 18th of March, and the collector must have kept it the space of four days sometime on the 22rl day of March, and the forty-eight hours, after the expiration of the four days, within which time, he was required by the statute to sell, must have expired on the 24th March ; and the question, which this case presents for our decision, is,, whether the collector became a trespasser ab initio, merely by his neglect to sell on the 24th March ; and we are of opinion that he did not. It is well settled, that mere non-feasance, cannot make a man a trespasser ab initio. 8 Coke 290, the six Carpenters' case, 15 John. 402.

Whether this action could have been maintained, if the collector had actually sold the distress after the 24th March, it is not necessary now to decide.

Judgment for the defendants,