Ayer v. Goss , 71 N.H. 66 ( 1901 )

No answer to the plaintiff's suit appears. The principal ground of the defendant's contention is that the settlement of February 15, 1899, was made without authority and had no legal effect as against the town. But whether this contention is valid or otherwise, the defendant's justification under the extent fails.

An extent for taxes against a delinquent collector by a town treasurer is an execution writ in the nature of final process, is to be strictly construed, and if issued for a greater amount than is due, it is void. P. S., c. 66, s. 1; Kimball v. Russell, 56 N.H. 488, 493, 494. It can only be issued when the collector neglects to pay the tax committed to him to the treasurer, "or other person to whom the same is payable, within the time limited in his warrant, which shall not be less than three months from the delivery of the warrant, except in cases where a shorter time is limited by law." P. S., c. 66, s. 4. As to uncollected taxes, the law fixes no time at which default and liability on the part of the collector shall be deemed to occur, and this must consequently be governed by the time prescribed in the collector's warrant, provided that it be not less than three months from its delivery; but as to collected taxes, the law does limit the time by requiring the collector to pay to the town treasurer, on the first Saturday of every month, all money collected by him up to that time. P. S, c. 43, s. 28.

Such being the law, there can be no legal justification of the defendant's act in issuing the extent under the circumstances detailed in the case; for if there was any liability of the plaintiff to the town after the settlement of February 15, the extent was invalid as to collected taxes because it was for too large a sum, and as to uncollected taxes it was invalid for the same reason, and because it was not preceded by the demand expressly required by the warrant itself.

Exceptions overruled.

All concurred.