Johnson v. Allen , 48 N.H. 235 ( 1868 )

Bellows, J.

In Davis v. Clement, 2 N. H. 330, iris held that a highway warrant is not returnable process, and that the return of the surveyor is no better evidence than his own declarations would be, and this is put upon the ground that the statute has not made it his duty to make any return of his doings upon his warrant, although the law then iu force, N. H. Laws, ed. 1815, 388,( authorized surveyors to make distress in the same manner as the several collectors and constables are enabled by law to do, in collecting the State taxes.

Upon the same ground it would seem that the warrant to the collector of taxes was not returnable process, inasmuch as the statute did not require a return to be made ; but, on the contrary, required a particular account of the taxes, goods sold, and the expenses to be delivered to the tax-payer in case of distress and sale; and, in case of arrest and commitment, requires him to leave with the jailor an attested copy of his warrant with the amount of the tax and the fact of commitment certified thereon; and in case of the sale of non-resident land for taxes, it is provided that an account of sales shall be filed in the town clerk’s office with the advertisements, and a copy is made evidence.

The present law is much the same as that of 1791 in its general features, except it is provided that a collector of taxes, iu the service of his warrant, shall have the powers by law vested in constables in the service of the civil process which shall continue until all the taxes in his list are collected; but the statute does not require a return upon the warrant.

In Kelly v. Noyes, 43 N. H. 209, it was supposed that this change in the law did-not make the collector’s warrant returnable process, although the question was left undecided. Without undertaking now to decide it, we think the return which was received without objection, was at least prima facie evidence of what was stated therein as clearly as if the defendant had without objection testified to it.

If this evidence was so received, and no objection made at the time, it would be too late to object afterwards in the argument to the jury. The objection should be made indeed as soon as the bearing of it is seen, otherwise it will in general be deemed to be waived. This is distinctly decided in Bassett v. Salisbury Manufacturing Co., 28 N. H. 452, where it is laid down that the objection should be taken at once when the evidence is first introduced and its bearing seen, and if a party fails to do so, he will be taken to have waived the objection, holding that there is no rule of practice in courts which rests on more secure foundation, or is more universally adopted than this ; and it is put upon the ground that if seasonably taken the other party will have an opportunity to obviate the objection.

In the case before us, the court ruled that this return was in without objection, and must be regarded as prima facie evidence of the facts therein stated; and under the circumstances we cannot say that the exception ought to have been allowed, or the instructions asked for given. We think, then, that there was no error in holding that the return so read was prima facie evidence of the facts stated therein.

The question, then, is, whether the evidence offered by the defendant and contained in the papers' recorded by the town clerk, and other papers and evidence as to originals, ought to have been received.

It was offered apparently to contradict the return of the defendant, and to show that the horse was not seized and sold for the taxes of Charles L. Johnson, or as his.property. It does not appear that it was offered in connection with other testimony tending to prove that fact; but we should understand that this was the only testimony to that point. If so, we think it was rightfully excluded as having no legal tendency to contradict the return. These papers tend to show, in fact, that the horse was sold for the taxes of Charles L. Johnson, and as his property. It is true that these papers also tend to show that the collector attempted to reach the interest of one Thomas Johnson, against whom he had a tax, in the same horse by virtue of a mortgage to him from Charles L. Johnson; and to retain out of the surplus beyond Charles L. Johnson’s tax, the amount of Thomas Johnson’s tax. But we think there is nothing in that which legally tends to prove that the horse was not sold as stated in the return. No exception was taken at the trial to the time the horse was kept before it was advertised, and we think'it is now too late.

There must, therefore, be

Judgment on the verdict.