Small v. Benfield

Supreme Court of New Hampshire

Small v. Benfield

20 A. 284, 66 N.H. 206

CourtSupreme Court of New Hampshire

DecidedJune 5, 1890

StatusPublished

Cited by8 cases

This text of 20 A. 284 (Small v. Benfield) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Small v. Benfield, 20 A. 284, 66 N.H. 206 (N.H. 1890).

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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.

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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.

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20 A. 284, 66 N.H. 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/small-v-benfield-nh-1890.

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