Small v. Benfield
Supreme Court of New Hampshire
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.
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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. The officer delivered seizin of the land to the defendant, and by his direction arrested the plaintiff and committed him to jail, where he was detained until he paid the costs and the" officer’s fees for service of the writ. A part of the fees charged by the officer, and paid by the plaintiff, was illegal.
1Opinion of the CourtCarpenter, J.
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.
The defendant is not responsible for the officer’s demand and receipt of illegal fees. He had no control…
2Cases cited1 opinion
- Cabe & Hobson Ltd. v. SterlingNew York Court of Appeals · 1889
3Cited by8 opinions
- Bowmaster v. CarrollCourt of Appeals for the Eighth Circuit · 1928
- Fox v. FoxNorth Dakota Supreme Court · 1928
- Kent v. TallentSupreme Court of Oklahoma · 1919
- Kosters v. HooverCourt of Appeals for the D.C. Circuit · 1938
- Cetenich v. FuvichSupreme Court of Rhode Island · 1918
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