Jewell v. Swain

Smith, J. In Thompson v. Currier, 24 N. H. 239, it is said that “ No principle of the law is better settled than that a distressi must not be excessive ; though the collector will not be liable to an action on this ground, unless the taking is obviously excessive, — as, if a man distrain two oxen for twelve pence, or a horse or an ox for a small sum, where a sheep or pig might be taken, because he might have taken a beast of less value. 2 Bac. Ab. 352, Distress, E.; 2 Steph. N. P. 1967 ; Saund. Pl. and Ev. 443.” The defendant distrained property, exclusive of the horse, of the value of $33, which was plainly insufficient to satisfy the tax due, with interest thereon. The value of the horse alone ($150) would have been sufficient to satisfy the tax and costs. Was the distress excessive ? - An officer is to exercise a sound discretion in respect to the amount to be seized. If the quantity seized by a sheriff will, in all reasonable *508 probability, be sufficient to satisfy an execution placed in his hands for that purpose, he will not be liable, although it prove insufficient. So, if it far exceed a sufficient amount, he will not be liable for an excessive levy. Commonwealth v. Lightfoot, 7 B. Mon. 298. Did the officer exercise a sound discretion in the distraint which he made ? This is to be determined by all the circumstances of the case. Where different articles of property are alike accessible to him, he is bound to select such as will best facilitate the satisfaction of the tax, with the least expense and inconvenience to the tax-payer. The referee reports that the testimony was conflicting upon the point whether the plaintiff' pointed out other property upon which the defendant could make distress. He does not find how this was, nor report to us such facts as will enable us to find as matter of fact how this was. The referee, however, finds that the plaintiff had other property which might have been seized to enforce payment of the tax ; but nothing appears from which we can find that the defendant did not use a sound discretion in seizing the horse, with the other property of the plaintiff. He has found an award in favor of the defendant, which he could not have done unless he had found that what the defendant did in seizing the property was a reasonable thing to be done under the circumstances of this case. He may have found that it would have been an unreasonable act in the defendant to take the horse and leave the other articles. It is not for us to say, as matter of law, that what the defendant did was unreasonable. It is purely a question of fact, which the referee has found in favor of the defendant, and his finding is conclusive upon us. Cushing, C. J., and Ladd, J., concurred. Exceptions overruled.