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66 N.H. 206

20 A 284

Small v. Benfield

Supreme Court of New Hampshire

Decided June 5, 1890

Supreme Court of New Hampshire · decided 1890-06-05

Trespass, for false imprisonment. The defendant obtained judgment against the plaintiff in a writ of entry for the land, and for costs taxed at $12.25 including seventy-five cents not lawfully taxable, sued out a writ of possession, and put it in the officer’s hands for service.

Relies on Wells v. Burbank · Fowler v. Brooks · Cabe & Hobson Ltd. v. Sterling

Good law ✅— No negative treatment on recordhow we know

Decided 1890-06-05

How this case has been cited

Cited by 5 later decisions — most recently May 1938

2 federal appellate · 2 state decisions

2018901900191019201930decided

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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Carpenter, J.

¶1 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.

¶2 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.

¶3 Judgment for the defendant.

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