State v. Scammon

22 N.H. 44

• Court: Superior Court of New Hampshire
• Decided: December 15, 1850
• Status: Published

Opinion

Perley, J.

By section 10, chap. 45, of the Revised Statutes, it is provided 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 his list, wherever such person or his property may be found.”

The general authority of the collector is confined to the limits of his own town, and if he undertake to execute his warrant beyond, he must bring himself within one of these two cases defined in the statute. He must show, either that he was executing his warrant against a person whose name is on his list and who has removed from his town since the assessment of the tax, or against a non-resident, whose personal property is taxed in his list.

The indictment alleges that Clifford was collector of taxes for Epping, and was obstructed in the town of Stratham “ in the service of a certain warrant for the collection of taxes, theretofore issued and directed to the said Clifford, by the selectmen of the said town of Epping.”

The indictment therefore shows that Clifford had his authority as collector, from the selectmen of Epping, and that he was attempting to execute his warrant in Stratham. But the indictment has no allegation of any fact, showing his authority under the statute, to serve his warrant in Stratham.

The general allegation that he was in the due and lawful execution of his office, is not in this case sufficient. The indictment should state the facts, which would give him authority to act beyond the limits of his own town. The authorities cited by the defendant’s counsel, established the principle which governs this question—and The King v. Osman, 5 East, 304, is very strongly in point. In that case it was held, that where a defendant is indicted for assaulting the officer of a local court, in the execution of a warrant, the indictment must state the facts which show the officer’s authority, and that it is not sufficient to allege that he was “within the jurisdiction of the court” and “in the due execution of his office. The objection in that case was held fatal on motion to arrest the judgment.

This indictment therefore fails to show that the defendant has been guilty of any offence, and is bad on motion in arrest of the judgment. According to the agreement stated in the case there must be

Judgment on the verdict.