Opinion
Decided June, 1890.
A judgment cannot be impeached collaterally for error in the taxation of costs. Where the officer, without the direction or knowledge of the plaintiff in a capias execution, charges for the service of the execution illegal fees, and holds the debtor in arrest until he pays them, the latter cannot maintain an action for false imprisonment against such plaintiff.
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.
John Hatch, for the plaintiff.
Marston Eastman, for the defendant.
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 over, interest in, or (so far as appears) knowledge of the officer's charges, and gave no directions in regard to them. In making them the officer was not his agent, and is alone answerable for their legality. G. L., c. 290, s. 27; Burnham v. Aiken, 6 N.H. 306, 323; Odiorne v. Mason, 9 N.H. 24, 30; Wells v. Burbank, 17 N.H. 393, 407; Avery v. Bowman, 40 N.H. 453, 457.
Judgment for the defendant.
CLARK, J., did not sit: the others concurred.