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56 N.H. 347

Paul v. Linscott

Supreme Court of New Hampshire

Decided March 20, 1876

Supreme Court of New Hampshire · decided 1876-03-20

From Carroll Circuit Court. Trespass, qu. cl. fr., for breaking and entering the plaintiff’s close, situate in Eaton, known as the E. G. Linscott pasture, on January 15,1874, and on divers days and times between that day and the date of the writ, and cutting down and carrying away 100 hemlock trees and 100 spruce trees, of the value of $200, The list was not signed by the selectmen, otherwise than immediately following the list was the record of the warrant to the collector,…

Good law ✅— No negative treatment on recordhow we know

Decided 1876-03-20

How this case has been cited

Cited by 6 later decisions — most recently February 1941

1 federal appellate · 5 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1I have had some difficulty in reaching the conclusion that the record of the invoice and assessment of the non-resident taxes in the selectmen's book was sufficiently authenticated by the signatures of the selectmen, following immediately after the copy of the collector's warrant appended to the copy of the invoice and assessment. It is obviously the duty of the court, in this as in most other matters, to consider rather the substance than the form; and I think that in this case we can so far understand the warrant as referring to the invoice and assessment, that we may justly consider it as amounting to an authentication of that copy. In the view of the judge who delivered the opinion in the case of Perkins v. Langmaid, cited by my brother LADD, some authentication of the record seems clearly to have been required. It would not be enough, according to that opinion, to copy the invoice an assessment into the record-book of the selectmen, and leave it without any authentication. I find myself; however, unable to read the recorded copy of the collector's warrant, without understanding that it refers to the copy of the invoice and assessment immediately preceding it.

¶2On the whole, I agree with the results reached by my brother LADD.

¶3^*STANLEY, J., C. C., concurred.

¶4Case discharged.

¶5^* SMITH, J., having presided at the trial, did not sit.

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Case posture

Posture: TRESPASS, qu. cl. fr., for breaking and entering the plaintiff's close, situate in Eaton, known as the E. G. Linscott pasture, on January 15, 1874, and on divers days and times between that day and the date of the writ, and cutting down and carrying away 100 hemlock trees and 100 spruce trees, of the value of $200, c. — writ dated February 18, 1874. Trial by court, SMITH, J. The plaintiff introduced the record of the annual town-meeting in Eaton, 1872, and it did not thereby appear that the selectmen were elected by ballot. Thereupon the plaintiff introduced one Robinson as a witness, who testified, subject to the defendant's exception, that he acted as selectman in 1871 and until the board elected in 1872 were qualified, that he assisted the moderator in counting the votes, and that the election was by ballot. The plaintiff thereupon asked leave to have the record amended, so as to show that the election was by ballot. Leave to amend was granted, and the defendant excepted. The plaintiff introduced the original bond of Charles Robertson as collector. The defendant objected that the time when said bond was filed should have been certified thereon by the town-clerk; but the same was read in evidence, and the defendant excepted. The plaintiff introduced the warrant of the treasurer of Carroll county, dated February 22, 1872, to the selectmen of Eaton, requiring them to assess, as the proportion of the county tax of said town for 1872, the sum of $539.42. The defendant objected that the records of the county convention should be produced; but the court admitted the warrant of the county treasurer, and the defendant excepted. The plaintiff also introduced the record of the invoice of resident taxes for 1872, subject to the defendant's exception; — also, record of non-resident invoice and assessment for 1872, in which the defendant was assessed for state, county, town, and school taxes, $3.67; highway taxes, $3.48. In the column headed Description, the description was, E. G. Linscott pasture, joining White farm. The list was not signed by the selectmen, otherwise than immediately following the list was the record of the warrant to the collector, signed by the selectmen, requiring him to collect the taxes in the list herewith committed to you, c. The court allowed the record to be given in evidence, and the defendant excepted. The plaintiff offered a paper purporting to be the original invoice and assessment of non-resident taxes for 1872, dated April 16, 1872, signed by the selectmen of Eaton, and is the same as the record above mentioned with the exception of the signatures of the selectmen. Said Robertson testified that said paper was delivered to him at the same time with his warrant, which bears the same date, by the selectmen, who said it was the original assessment of non-resident taxes, and requested him to accept it instead of a copy. Said paper was received, and the defendant excepted. The plaintiff introduced a letter from the deputy secretary of state, dated October 17, 1872, returning therewith the non-resident list, and stating that nothing had been collected thereon, which was received subject to the defendant's exception. Deed from Charles Robertson, collector, to Albert Paul, dated January 28, 1874, executed and acknowledged January 29, 1874, and recorded April 29, 1875, — received subject to the defendant's exception. The description in said deed is as follows: A certain piece of land, known and described as follows, viz., The E. G. Linscott pasture, joining the White farm on the north side, and containing fifty acres, more or loss, meaning to convey all of the land Linscott owned in Eaton in this peace. The plaintiff introduced evidence tending to show that the premises are commonly known as the E. G. Linscott pasture, also as the Gerry Linscott pasture, and that it adjoins the White farm on the south and west; that the defendant owned no other land in Eaton besides this pasture; and that he is sometimes called Gerry Linscott. The town of Eaton had been lotted prior to 1872. The plaintiff's evidence tended to show that the defendant cut and drew off, from the premises in dispute, timber, between the day of the sale, January 25, 1873, and the date of the plaintiff's deed, January 28, 1874. The defendant claimed that the plaintiff could not recover for timber cut and drawn off prior to January 28, 1874; and the court so ruled, and the plaintiff excepted. The defendant claimed that the tax of 1872 against the defendant was illegally assessed, because the number of the lot and range was not inserted in the list; but the court ruled otherwise, and the defendant excepted. The questions arising upon the foregoing case were transferred to this court for determination.

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Court

Supreme Court of New Hampshire