Nason v. Fowler , 70 N.H. 291 ( 1900 )

The plaintiff was de facto collector, although his warrant was not under seal. Jewell v. Gilbert, 64 N.H. 13. As such officer, he entered upon the performance of his duties and collected nearly all of the taxes in the list committed to him. From the money thus collected he retained in his possession an amount exceeding $22, which he neglected to pay to the town treasurer upon demand. The delivery to the treasurer of the plaintiff's individual check, which was dishonored, was not a payment. Barnet v. Smith,30 N.H. 256, 264; Taylor v. Thompson, 61 N.H. 156.

By the statute, "any collector to whom a tax is committed, who neglects to pay the same to the state, county, or town treasurer . . . within the time limited in his warrant, . . . shall be liable to an extent." P.S., c. 66, s. 4. The plaintiff was therefore liable to an extent, and the treasurer was authorized to issue one against him (Kimball v. Russell,56 N.H. 488, 495), unless the fact of his being a de facto officer shields him from the responsibility of a de jure collector for taxes collected and wrongfully withheld. The question presented is not as to the plaintiff's liability for ceasing to act or to perform the duties of his office when doubtful of his right to do so, but as to his liability for acts which he voluntarily performed in the discharge of the duties of the office which he assumed. A de facto tax collector has been held liable to account for and pay over money which he has collected. Pittsburg v. Danforth, 56 N.H. 272, 276. He is also liable on his bond for money thus received. Northumberland v. Cobleigh; 59 N.H. 250. And he can be punished for embezzlement of the money thus collected by him. State v. Goss,69 Me. 42; Mechem Pub. Off., s. 337. No reason is suggested why, for money actually collected and wrongfully withheld, a de facto collector of taxes should not be liable to an extent. In acting as collector, the plaintiff subjected himself to all the liabilities for his acts which would have attached to a rightful incumbent of the office acting under a proper warrant. He cannot now be permitted to invalidate his title to the office, or his authority to perform the acts which he did perform when acting or assuming to act as collector, and thereby shield himself from personal responsibility for those acts.

The extent was rightfully issued against the plaintiff, and the nonsuit was properly ordered as against the treasurer and selectmen. An extent is an execution writ in the nature of a final process. P.S., c. 66, s. 1. Kimball v. Russell, supra, 493. It was the duty of the sheriff, after arresting the plaintiff, to commit him to jail without unnecessary delay unless he paid the amount for which the extent was issued. Riley v. Whittaker, 49 N.H. 145, 147. If the officer having him in custody on final process voluntarily suffered him to escape, he could not be retaken, and for recaption the officer would be liable to an action of false imprisonment. Butler v. Washburn, 25 N.H. 251, 258; Riley v. Whittaker, supra, 148. The object of arrest on final process is to deprive the party of his liberty in order that he may be induced to pay the judgment against him, and any kind of an escape defeats this object. If the arrest was made on Saturday, the sheriff's subsequently permitting the plaintiff to be out of his custody from that day until the following Monday, in the manner he did, constituted a voluntary escape. Sherburn v. Beattie, 16 N.H. 437; Riley v. Whittaker, supra, 149; 2 Gr. Ev. (16th ed.), s. 589. In that case his subsequent arrest on Monday was without justification. But from the facts disclosed by the case it does not appear conclusively whether an rest was made on Saturday or not. Whether an arrest was made then is a question of fact. There was evidence on that question which entitled the plaintiff to have the case submitted to a jury. The nonsuit as to the sheriff, Moulton, was improperly ordered. The case will stand for trial against him.

Exception sustained.

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