Clark v. Bragdon

Eastman, J. According to the view which the court have taken of this case, it becomes unnecessary to examine but one of the several questions presented by the pleadings. The wood distrained to pay the tax was the property of the plaintiffs. The list of taxes accompanying the warrant, and without which the warrant was void, did not contain their names, but only the name of William Clark. Can such a precept be any defence to an action of trespass for taking the joint property of the three plaintiffs ? The entry upon the list which the defendant sets forth in his plea as that under which he took the property, is “William Clark et all.” The names of Amos Clark and John S. Lamprey are not to be found upon the list, nor is there any description of them, either in the warrant or on the list; and unless we can construe the words or letters “ et all," as meaning Amos Cark and John S. Lamprey, and as a sufficient insertion of their names upon the list, the defendant had no warrant to collect any tax of them. The warrant directed the collector, for want of property on which to make distress, to take the body of any one [565] who should neglect or refase to pay the tax, and the defendant had as much power, so far as the warrant gave it, to arrest Lamprey and Amos Clark, as to take their property. To justify an arrest, the name of the party to be apprehended must be accurately stated and inserted in the warrant before it is delivered to the officer. 2 Hale 114; Foster 312; 1 Chitty’s Cr. Law 39; State v. Weed, 21 N. H. (1 Foster) 368. If the name of the person to he arrested is unknown, the warrant may be issued against him by the best descrijr'/ion the nature of the case will allow. 1 Hale 577 ; 1 Chitty’s Cr. Law 40. But the description must be sensil j e and intelligible. Thus a warrant directing the “asM dates” of persons named to be arrested, without ment < ning the names of such associates, has been held to be il< gal and void as to them. Wells v. Jackson, 3 Munford 458. And the arrest of a member of a corporation, on an a ecution against the president, directors and company o; ; he corporation, though the execution direct the office?’, for want of corporate property, to take their bodies, / s¡ a trespass. Nichols v. Thompson, 4 Mass. 232. Such / recept, says Parsons, C. J., is absurd and impracticable, j A general and uncertain description is not sufficient to justify an arrest. Sanford v. Nichols & al., 13 Mass. 289 ; Grumond v. Raymond, 1 Conn. 40. In Van Rensselaer v. Witbeck, 3 Selden (N. Y.) 517, it was held that the assessment roll, annexed to the warrant of the collector, being defective on its face, was no pi’otection to the officer. The description of the plaintiffs, on the list in this case, was entirely insufficient, and the warx-ant was consequently illegal and void as to them. “ Pt all” may as well mean any other pei’sons l’esiding in Hampstead as John S. Lampi’ey and Amos Clark. Used as it was, it was unintelligible ; it gave no description whatever of the plaintiffs, and no au [566] thority to take their property ; and the warrant afforded no protection to the defendant. "Where a warrant is in due and legal form and regular upon its face, the collector will be protected, notwithstanding any irregularity or illegality committed by the selectmen or town in assessing or voting the taxes, or issuing the warrant. Rev. Stat., chap. 45, sec. 16 ; State v. Weed, 21 N. H. (1 Foster) 262; Gordon v. Clifford, 28 N. H. (8 Foster) 402, 417. But where the defect is patent, and the warrant' upon inspection shows that it lacks the legal requisites to make it valid, it is no protection. It is in fact no warrant. Gordon v. Clifford, 28 N. H. (8 Foster) 418 ; Van Rensselaer v. Witbeck, 3 Selden 517; Sanford v. Nichols, 13 Mass. 289 ; Griswold v. Sedgwick, 6 Cowen 456; Gurney v. Tufts, 37 Maine 130. We infer from the pleadings that the assessment of this tax was equally as invalid as the warrant; the assessment being made to “William Clark et all.” The tax was attempted to be assessed upon certain real estate of the plaintiffs, and upon a quantity of wood belonging to them. The statute of 1850 provides that all wood shall be taxed to the owner or owners thereof if they are known. Comp. Stat., chap. 42, sec. 8. And when they are known, as appears to have been the fact here, the tax must be assessed to them ; otherwise it will be defective. Ainsworth v. Dean, 21 N. H. (1 Foster) 401; Cardigan v. Paige, 6 N. H. 192; Green v. Craft, 28 Miss. 70. And all real property must be taxed to the person claiming the same, or to the person in the possession and actual occupancy thereof, provided such person will consent. Rev. Stat., chap. 40, sec. 7. These provisions of the statute are very explicit, and would seem to place the defendant’s case beyond remedy. But it is unnecessary to examine this point, as the pleas show a fatal defect in the warrant. [567] The exceptions to the judgment of the court below must be overruled, and the judgment for the plaintiffs upon the demurrers affirmed.