Gordon v. Clifford

28 N.H. 402

• Court: Superior Court of New Hampshire
• Decided: July 15, 1854
• Status: Published

Opinion

Eastman, J.

The first exception taken by the plaintiff upon the trial of this cause, was to the official character of the selectmen who signed the warrant, by virtue of which, the plaintiff was arrested. It appears that the selectmen were not chosen at the regular annual meeting for.the choice of town officers that year, but at a subsequent meeting, the annual meeting having been dissolved without the choice-of any town officers.

The statute provides that “ when any person elected to any town office shall not accept the same, or shall die, resign, remove from town, or become insane, in the judgment of the town, or where no annual meeting shall have been holden for the choice of town officers, or no choice has been-made, or when there shall be a vacancy in any other way, the town may choose such officer at any legal meeting holden for that purpose, or at the adjournment of the annual meeting.” Com. Stat. ch. 38, § 1.

The meeting at which these officers were chosen appears to have been seasonably warned, and the statute clearly provides for a meeting and election, where no choice has been made at the annual meeting, as was the case here»,, And the only ground upon which this exception can be sustained is that stated in the argument, viz., that the case does not show that the meeting on the 28th of March, at which the selectmen were chosen, “ was held for that.purpose.” In other words, we suppose the objection to be, that there was no article in the warrant, calling the meeting on the 28th, for the choice of these officers. The statute provides that the meeting must be held for that purpose; and, consequently, unless the warrant set forth the object of the meeting, an election would be defective.

It does not unequivocally appear by the case sent up that the warrant was perfect in this respect, but until the contrary is shown, we shall presume that it was, inasmuch as the point is not distinctly taken in the case. Had the warrant calling the meeting been defective in this respect, we think it would Rave been made to appear at the trial, so as to place the fact beyond doubt. As the case stands, this exception must be overruled.

We might suggest the inquiry, in connection with this exception, whether, even assuming that there was a defect in the warrant calling the meeting at which the- election was made, any advantage could be taken against the collector, if those signing the warrant were acting as selectmen of the town. The sixteenth section of chapter 48 of the Compiled Statutes provides, that “ no person to whom any list of taxes shall be committed for collection shall be liable to any suit or action by reason of any irregularity or illegality of the proceedings of the town or of the selectmen, nor for any cause whatever, except his own official misconduct.” The provisions of this section of the statute are.very broad, and would seem to form a perfect shield for the collector against all liability upon this ground.

The second exception was, that the collectors did not show themselves legal officers ; not being legally sworn.

The statute requires that the town clerk shall make a record of every oath of a town officer, “ the import of which record may be that the officer took the oath of office prescribed by law.” Com. Stat, ch. 37, § 8. The record in this case was, that the collectors “took the oath by law required.” And this, we think, was sufficient. The statute 3s not imperative as to the precise phraseology that shall be used. If the substance is entered upon the record it is sufficient.

We are aware of the decision in Gibson v. Bailey & a., 9 N. H. Rep. 168, and of Ainsworth v. Dean, 1 Foster’s Rep. 400, in which it was held that where the record states the officer to have been “ qualified by A. B.” and nothing further appears, it is insufficient. But there is a marked distinction between the record in those eases and the one before us. “ Qualified,” may indicate that the person took some oath, but it does not show, nor can it be legally inferred therefrom, that he took the oath of office prescribed by law. Whereas, as it appears to us, it would be difficult to point out any substantial difference between “ took the oath of office prescribed by law,” and “ took the oath by law required.” .

But even should we hold the record insufficient, it might be amended, Gibson v. Bailey & a., 9 N. H. Rep. 168; Cavis v. Robinson, 9 N. H. Rep. 524.

The third exception was, that the copy of the warrant left with the jailer by the defendants, .had nothing upon it to indicate that the warrant was under seal. There is no suggestion that the warrant itself was not under seal.

The statute provides that for want of goods and chattels whereon to make distress, the collector may take the body of any person neglecting or refusing to pay the tax assessed against him, and commit him to the common jail. Com. Stat. ch. 48, § 8. And the next section provides that in such case the collector shall give to the jailer an attested copy of his warrant, and thereupon certify the sums such person is taxed in his list, &e.

Now it is sought to charge the defendants in trespass, because there was nothing upon the copy left -with the jailer indicating that the warrant was under seal; that is, as we understand the objection, there was no scrawl or letters “ L. S.” upon the copy, as is the usual custom in making copies of instruments upon which there is a seal. Without deciding whether, had the action been brought against the jailer instead of the collectors, the copy would have been a sufficient justification-for him for detaining the plaintiff in custody, -we are of opinion that so far as the defendants are concerned, this defect, if it be one, is not available to the plaintiff in this action. The warrant by which the arrest and commitment were made was under seal. In committing the plaintiff to jail, the defendants acted under their warrant, and not under the copy. The copy was the precept by which the jailer detained the party in custody, and was not acted under until after the commitment, when the prisoner passed from the custody of the defendants to that of the j ailer. The precept by which the defendants held the plaintiff being legal, the only way in which they could be made liable, in this form of action, for such a defect, must be to hold them as trespassers, ab initio. But that cannot be done ; for in order to make a person, who has acted with propriety under legal process liable, ab initio, for subsequent illegal acts, it must be shown that he has abused the authority under which he acts. ‘This is the doctrine recognized by the authorities, and will be found, in substance, in State v. Moore, 12 N. H. Rep. 42; Ordway v. Ferrin & a., 3 N. H. Rep. 69 ; Barrett v. White & a., 3 N. H. Rep. 210.

This error is at best a mere non-feasance in copying the warrant; a clerical mistake in not putting upon the copy some hieroglyphics indicating that there was a seal upon the warrant, and its place. All the language of the warrant is correctly copied, and the indorsements required by statute properly made, and we do not think that this error in making the copy can or should render the officers trespassers, ab initio.

Another exception taken by the plaintiff was, that the warrants did not authorize the collectors to distrain until after giving written or printed notice, and that it was not shown that any such notice was given.

The statute does not require the notice to be in writing, except where it is left at the usual place of abode of the tax payer. The section is as follows: “ The collector shall give notice of such tax to every person taxed, or leave a notice thereof in writing at his usual place of abode, fourteen days, at least, before he shall distrain therefor, unless in eases where he has reason to believe such person is about to remove from town.” Com. Stat. eh. 48, § 2.

Section 10 of the same chapter provides that “ in case of removal from town, or of an assessment upon the personal property of non-residents, the collector may distrain the property, or arrest the body of any person named in the list, wherever such person or his property may be found.”

Taking these two sections together, it is by no means certain that any notice is necessary where the person removes from town, indeed, without deciding the point, such is our impression. But it is clear that a written notice is not in all cases necessary. It is only when left at the usual place of abode that the statute makes it imperative to give such a notice.

The exception was not, that notice was not given, but that it was not given in writing, according to the terms of the warrant. But the warrant cannot impose upon the collector more formality or greater duties than the law exacts, and such requirement in the warrant is mere surplusage, and may properly enough be disregarded by the collector, where the facts are as presented here. This exception must, of course, be overruled.

A further exception was, that the warrants authorized the sale of real estate within one year, and the arrest was long after the expiration of a year from the date of the warrants, and in another town.

This clause, in the warrants was in accordance with the 13th section of chapter 48 of the Compiled Statutes, which provides that “ the real estate of every person or corporation against whom any tax may be assessed, shall be holden for such tax for one year from the first day of June following, and may be sold by the collector in ease such person shall die or remove from town, and leave there no personal estate on which distress can be made, or in case such person or corporation shall neglect or refuse to expose goods whereon distress may be made.” This section does not in any way conflict with the other sections which we have cited, but provides further remedies in the instances specified. It does not prevent an arrest in case there be no goods and chattels whereon to make distress; nor does it prevent an arrest or distress, where the person has removed from town.

But apart from this view of the statute, it is a sufficient answer to this exception to say, that the case does not show that the plaintiff owned any real estate in Epping. It finds that from the death of her husband in 1845, until February, 1848, the plaintiff had lived on the farm which had been owned by him in Epping, and which, after his death, was carried on by a tenant. This is all we have upon the subject; and whose the farm was during her residence upon it is not stated. Before this exception could prevail, it should distinctly appear that the plaintiff owned real estate at the time.

The next point presented raises a question of considerable importance, as settling the sight of the defendants to enter the house of Seammon, the'plaintiff^ son-in-law, at Stratham, for the purpose of arresting the plaintiff Upon this point the ease finds that “ the evidence tended to show that when the collectors arrived at the dwelling house of Stephen Seammon, in order to arrest Mrs. Gordon, they found the outer door fastened, and were refused admittance by Mrs. Seammon, but the door was opened by Fogg, one of the defendants, without her consent, and thereupon the collectors entered and made the arrest. But there was also evidence tending to prove that Seammon’s object in removing Mrs. Gordon to Stratham, and making her a member of his family, was to prevent the collection of the tax, and protect her from an arrest by the collectors; and the court instructed the jury, that if such was his object, the collectors, after a request that the door might be opened, and a refusal, might lawfully break the house to akest her, because Seammon had received her in bad faith.”

Under these instructions the jury must have found that the plaintiff’s residence at Stratham was with the fraudulent design of avoiding the payment^jf the tax, and the question whether the collectors could lawfully enter the house, assuming the plaintiff to have been rightfully there, after the outer door had been opened by Fogg, does not arise. The point is upon the correctness of the instructions given by the court.

The doctrine that a man’s house is his castle and cannot be forcibly entered for the execution of civil process, is well established. No man can be arrested in his own house upon such process, provided the outer door be shut. But if the outer door be open, an officer, having gained admittance, may bréale open an inner door to arrest a defendant. 16 Johns. 287; Cowp. 1; Williams v. Spencer, 5 Johns. Rep. 352; Fitch v. Loveland, 1 Kirby, 386; Hubbard v. Mack, 17 Johns. 127 ; 8 Taunt. 250.

This protection from arrest in civil process extends to the occupant, his children and domestic servants, but how much further, is not clearly settled. Foster, Hale, and Coke, in treating of the inviolability of dwelling houses, say that the outer doors or windows shall not be forced by an officer in the execution of civil process against the occupier or any of his family who have their domicil or ordinary residence there; but that the house shall not be made a sanctuary for other persons; so that, if a stranger, whose ordinary residence is elsewhere, upon a pursuit, take refuge in the house of another, the house is not his castle, and the officer may break open the doors or windows in order to execute his process. Foster’s Crown Law, 320 ; 2 Hale, 117 ; 5 Coke, 93 ; 1 Hale, 459.

In Oystead v. Shed, 13 Mass. Rep. 520, Parker, C. J., in speaking of the rule as laid down by Foster and others, says that according to these principles, not only the children and domestic servants of the occupier are of his family, and so entitled to protection, but also permanent boarders, or those who have made the house their home, may properly be considered as a part of the family. But in the same opinion it is stated that a stranger, or perhaps a visiter would not enjoy the same protection; for as they have acquired no right to remain in the house, if the occupant should refuse admission to the officer after his purpose and his authority were made known, the law would consider him as conspiring with the party pursued, to screen him from arrest, and would not allow him to make his house a place of refuge. See, also, Still v. Wilson, 1 Wright, 505.

The effect of the decisions seems to be, that all who have for the time being a legal domicil in the house, all ■ who have a legal right to remain in it, will be protected.

But a domicil existing by fraud, and taken up with the express object of defeating the collection of a tax, cannot and should not come within the rule. As stated by Chief Justice Parker, in the views quoted, the law would consider the transaction a conspiracy, and would not allow the house to be made a place of refuge to screen the party from arrest.

We think, then, that the instructions of the court upon this point were correct; and the jury having found the domicil of the plaintiff to have been fraudulent, the defendants ¡had a right to enter the house and make the arrest, whether the outer door was open or not.

But notwithstanding our opinion upon the various exceptions considered, and notwithstanding we are inclined to think that the testimony of Henry Tilton might be admitted upon the ground of contradicting Mrs. Scammon on a material point, to wit, the object of the plaintiff’s residence at Scammon’s house, yet there is one exception upon which the verdict in favor of the collectors must be set aside.

The fourth exception was, that the' selectmen did not sign the tax list accompanying the warrants. The lists and warrants were in the same books, the former immediately preceding the latter, and were directly referred to by it in the words “ the lists aforesaid,” and the selectmen wrote their signatures at the close of the warrants. But the lists were not signed; and this was contrary to the express requirement of the statute, and the decisions upon it. Com. Stat. ch. 45, § 8 ; Chase v. Sparhawk, 2 Foster’s Rep. 134 ; Foxcroft v. Nevins, 4 Greenl. 72; Colby v. Russell, 3 Greenl. 227.

In Chase v. Sparhawk, we held that selectmen cannot justify a distress for taxes under a list and warrant like those in this case ; and that they are answerable in an action of trespass for the act of the collector in the seizure of property for the enforcement of the collection of taxes, in pursuance of the direction contained in the warrant. The only way in which these collectors can be shielded from the effects of this requirement is by the provisions of the 16th section of chapter 48 of the Compiled Statutes, before cited ; and we have examined this point with an inclination to protect the defendants, under these provisions, if it could be done. But we can discover no way in which it can be. The list of taxes makes a part of the precept by which the distress or arrest is made; and it is incomplete and illegal if the list is not signed. It is not a process authorized by law, and it shows upon its face that it is not; and it cannot therefore protect the collector, or any one acting under it. If the warrant were in due and legal form, and regular upon its face, the officer would be protected, notwithstanding any irregularity or illegality committed by the selectmen or town in assessing or voting the taxes, or issuing the warrant. Com. Stat. ch. 48, § 16; State v. Weed, 1 Foster’s Rep. 262. But a collector cannot be protected in acting under a process illegal and defective upon its face. Without the legal requisites to make it valid, it is no protection any more than if the collector acted without a warrant. It is in fact no warrant, and in executing it, he acts, or undertakes to act in his office without any authority, and is therefore guilty of official misconduct.

It appears that this exception was taken as to two only of the defendants, Clifford and Tilton, who were the collectors ; and the result therefore is, that judgment be entered on the verdict as to all the defendants except Tilton and Clifford, and that as to them it be set aside.