Small v. Benfield

20 A. 284, 66 N.H. 206

Opinion

Carpenter, J.

The plaintiff has a direct remedy for the error in the taxation of costs. Bedel v. Goodall, 26 N. H. 92; Chamberlain v. Sterling, 26 N. H. 115; McIntire v. Carr, 59 N. H. 207 ; Abbot v. Renaud, 64 N. H. 89; Bean v. Savings Bank, 64 N. H. 350. The judgment, though erroneous, is not void. It cannot be impeached collaterally, and, until it is reversed or set aside, justifies all acts done under its authority. Fowler v. Brooks, 64 N. H. 423, and cases cited; Carr v. Sterling, 114 N. Y. 558.

The defendant is not responsible for the officer’s demand and receipt of illegal fees. He had no control over, interest in, or (so far as appears) knowledge of the officer’s charges, and gave no directions in regard to them. In making them the officer was not his agent, and is alone answerable for their legality. G. L;, c. 290, s. 27; Burnham v. Aiken, 6 N. H. 306, 323; Odiorne v. Mason, 9 N. H. 24, 30; Wells v. Burbank, 17 N. H. 393, 407; Avery v. Bowman, 40 N. H. 453, 457.

Judgment for the defendant.

Clark, J., did not sit: the others concurred.