The Souhegan Nail, Cotton and Woolen Factory vs. McConihe, 7 N.H. 309

Parker, J. It is not material to enquire whether the corporation had a right, by their charter, to own and hold the store of goods. The corporation itself, clearly, cannot be permitted to say, that it was a wrongful act for them to possess this property —was contrary to their charter — and that, therefore, they are not taxable for it, or are taxable as a company, or as individuals. In The Gardiner C. and W. F. Company vs. The Inhabitants of Gardiner, 5 Green.

Rep. 133, it was held, that the merchandize of a manufacturing corporation employed in trade in a store, was not taxable to the corporation in the town where the store was situated; but this decision cannot be an authority here, on account of a difference in the statutes of the two states. In 1825 the legislature of this state passed

an act, providing that the rateable estate belonging to any manufacturing corporation, or company, in this state, should thereafter be taxed to such corporation or company by its corporate name, and in the town or place wherein said rateable estate was situated. It is sufficient, that this property was not in the hands of the stockholders, as individuals, and that no individual claimed or exercised ownership over it as such ; and it could not be taxed to the plaintiffs as a partnership, otherwise than as it was taxed, because there was no company, or firm, other than the corporation by its corporate name.

The property was in the possession of the corporation, and the selectmen had a right to consider it as lawfully so, and treat it accordingly. It does not appear how the invoice was taken. The statute requires the clerk, agent, or directors of a manufacturing corporation, to exhibit to the selectmen a true account of the rateable estate of which such corporation shall be possessed on the first of April.

And in case they shall neglect, after being duly notified, or refuse when called on, to give a true account, on oath if required, or in case they shall fraudulently conceal some part of their rateable estate, the selectmen may for such neglect or refusal doom, or for such fraudulent concealment assess, the corporation, in the same way and manner they may by law doom or assess an individual, for such neglect or refusal, or for such fraudulent concealment of a part of his rateable estate. Laws of June session, 1825, page 70.

There is nothing here to show that some proper officer of the corporation did not give in an account of this estate ; or if this was not done, it does not appear that there was not a neglect, upon which it was proper for the selectmen to doom. The case, therefore, is well enough in this respect. The position that the property was exempted from taxation cannot be supported. “ All buildings, machinery, and ‘ capital employed, or that may hereafter be employed, in ‘ carrying on said nail, cotton and woolen factory, not ex- ‘ ceeding thirty thousand dollars, shall be exempted,” &c.

But this store of goods was neither within the words or intention of the act. 5 Green. Rep. 139. It was not capital employed in carrying on the nail, cotton and woolen business, but in exercising the trade of a merchant. It was neither the raw material, or the manufactured article, nor a fund for the purchase of the raw material, or to be applied to the hire of laborers, although it might be sometimes, thus employed, by sales to such laborers, in common with other citizens. If the company embarked a part of their capital in this business, it will make no difference.

It would in such case be diverted from the purposes for which the exemption was granted. - . Suppose the plaintiffs had employed their whole capital in merchandize. Could it be contended that, thus employed, it was within the exemption? Such a construction would be a fraud upon the public.

And if the whole, thus employed, would not be within the exemption, neither can a part be, for the same reason, to wit, that this is not a part of the manufacturing business — -nota mode of carrying it on — - but the prosecution of another business, for the purpose of a profit. * And while .the legislature have uniformly taxed such stock in trade, in the hands of individuals, there is no reason to suppose that they intended to grant an exemption to this corporation, to encourage them to pursue a similar business.

The exemption was granted - for. the capital employed in manufacturing, in order to encourage that. ■ It is unnecessary, therefore, to consider whether the exemption was constitutional. . . The property, then, being liable to assessment, has such assessment been legally made ? It is objected that the assessment is erroneous — that the name of the .corporation is “ The Souhegan Kail, Cotton and Woolen Factory,” and that the assessment is made and warrant issued again-st “ The Souhegan Nail, Cotton and Woolen Corporation.” The property was by statute to be taxed to the corporation by its corporate name.

The object of this, however, was not to require that every word, syllable and letter, contained in the corporate title, should be inserted in the tax list, but to provide for a corporate, instead of an individual, taxation. Prior to 1825, shares in manufacturing .corporations, like shares in banks, were taxed to the individual stockholders. That statute changed the rule, and ' provided that all the taxable property of manufacturing- corporations should be assessed to’ the company. . . ’ - Suppose, the corporate name being <! The Souhegan,” <fcc., the taxhad been-assessed, omitting the article.

Would -that- have vitiated the - tax ? No’ one would - attempt to maintain such a position. - - It has been supposed that there was some analogy between a process of this character, and the ordinary process in instituting a suit by attachment or arrest, in which case, if there is a misnomer, the writ may be abated : and it is -argued, that, as the statute of jeofails does not extend to this case, there can be no amendment. But there is in truth little more than a fancied analogy. All persons and corporations within a town owe a duty to the town.

It is their duty to give in an invoice, by -a true name, and to pay the taxes assessed. So far as any analogy exists, it is to final process, where the party has neglected to plead abatement, rather than to mesne process. The taking of the invoice is the preparatory process — the making of the taxes the entering of judgment. Opportunity is given for the correction of errors, by application to the selectmen. The warrant to. collect is in fact a final process. It is, therefore, more like a case, where one summoned by a wrong name appears, and neglects to plead abatement, and has judgment against him by that name.

It is true there was no opportunity to plead abatement, but there was to have mistakes corrected. By neglecting to avail himself of this opportunity for the correction of errors, however, an individual does not preclude himself from objecting, afterwards, to any substantial defect. The requirements of the law, in all matters of substance, must be strictly pursued, before the property of an individual or corporation is taken away by such process. But, on the other hand, the selectmen should not be regarded as prosecuting an adversary suit against those upon whom it becomes their duty to assess a tax.

If the requisitions of the law have been substantially complied with, mere circumstantial errors and mistakes, in matters of form, should not vitiate the proceedings. Is this then an error of substance or form ? In ejectment, the demise was laid to be by “ The mayor, aldermen,” &c. “ of the borough town of Malción." On the trial it turned out, from the charter, that the name of the corporation was “ The mayor,” &c. of Malden. The court held this was no variance, it appearing from the charter, which was in evidence, that Malden was a borough town. 1 Barn. & Ald. 699, Doe vs. Miller.

Although the names of corporations a.re not mere arbitrary sounds, yet if there be enough said to show that there is such an artificial being, and to distinguish it from, all others the body politic is well named, though the words and syllables are varied from : and this the rather in grants, which are to have a favorable construction. Bac. Abr.. Corporation., C. 2. The case of The mayor and burgesses of Lynne Regis, 10 Co.

Rep. 124, was founded on a bond to the plaintiffs, by that name, which varied.from the true name ; and it was resolved that “ the name of a corporation, in grants or con‘veyances, need not be idem syllabis et verbis, but it is suffi- ‘ cient if it be idem re et sensu." Coke, in that case, says “ there will be found a difference between writs and grants, 'and in all cases it is true, quod apices juris non sunt jura, ‘ for if a writ abates, one might of common right have a ‘ new writ, but he cannot of common right have a new bond 1 or a new lease, <fcc.” — “ So I conceive it would be reason- ‘ able, a multo fortiori, to drive him who would avoid a 'writing, demise, grant, &c., made by a corporation, or to it, ‘ by reason of any verbal or literal misnomer, to shew that ‘ there are two corporations in the same city, borough, or ‘town, &c., one by the true name, and; another by such ■ name as is contained in the deed,- &c., and to leave the ‘ deed, &c. good, by or to one of them/’ Vide also 10 Mass.

Rep. 362. ' . ' ■ . ■ - . ' The plaintiffs were incorporated by the name of .“The mayor and burgesses of the borough of Stafford, in the county of Stafford,” and sued by the name of “The mayor and burgesses of the borough of Stafford.” This is in abatement, and not in bar. Eyre, C. J. said — “Here wasa ‘ corporation of nearly the same name, and I think,, there- ‘ fore, on the authorities, that the nonsuit -was wrong,” 1 Bos. and Pul. 40, The Mayor, &c. vs. Bolton.

When1 a corporation is sued, if the name of the corporation is mistaken materially and substantially, the corporation cannot be- affected by' the proceedings.; There is in. these ■cases a'distinction made between a variance in words and syllables only, and a variance in substance. - If a corporation be sued by a name varying only in words and syllables, and not in substance,- from the true name, the misnomer must be pleaded in abatement, otherwise it will not - be regarded. But if the name be mistaken in substance, the writ cannot be regarded as against the corporation. 5, N. H. Rep. 449, Burnham vs.

The Savings Bank. The statutes of Néw-York.directed the trustees of school districts, in assessing taxes, to make out a tax list “-containing the names of all the taxable inhabitants,” &c.,.and a tax-assessed to “ The widow and heirs, of A, B., deceased,” for a farm which was owned and actually possessed by such widow and heirs, was held sufficient to justify the collector in executing his warrant, 10 Wendell’s Rep. 340, Wheeler vs. Anthony.

As no plea in abatement caribe interposed to a warrant for the collection of a tax, it would seem that an objection of misnomer in the assessment of such tax,- or rather that the tax was not assessed against the corporation, .should be founded upon a substantial variance, and not one, of mere words and syllables. If there is no plea of abatement, there should be no law of abatement. The reason given for a distinction between leases, bonds, &,e., and writs, well applies in such ease. If the objection is held fatal, the tax is wholly lost. There is no giving of a better process.

That the corporation, in this case, is substantially described by its corporate name, cannot be doubted. Although the word “ factory” is omitted, no one would read it without understanding that it was a manufacturing corporation : and it is not suggested that there was in the town any other corporation of a like description. How far the same doctrine can be applied to taxes against individuals, we are not now called upon to decide. It would seem that a tax against John Doe, when the individual intended ivas John W.

Doe, and there was no other person of a similar name in town, which is a case nearly analogous to this, would not present such a substantial misdescription that it must necessarily fail ; although a total mistake and misdescription of the Christian or símame might render it void. 6 D. & E. 234, Cole vs. Hindson; 2 Camp. 270, Scandover vs. Warne; 8 East, 328, Shadgett vs. Clipson; 4 Wend. 555; 6 Cowen 456; 7 Cowen 332. It is farther objected, that there is no sufficient evidence of the appointment of the collector.

He was appointed by the selectmen, in pursuance of the statute, the town having neglected to elect one. That the appointment should in some way appear of record, is true. But there is no particular form for a record in such case — and the warrant granted to him, which is his commission for collecting the taxes, and which of course must have been recorded in the town records, being under the hands and seal of the selectmen, is a sufficient evidence of an appointment by them, the town having neglected to elect. 2 N. H. Rep. 205.

If it did not appear that the town had so neglected, this might not have been proper evidence of an appointment, as the ease might have presupposed other and better, that is, a record of an election. A distinct record of the appointment would be more formal, and is to be preferred. Another objection is, that the proceedings of the defendant were unlawful.

It is urged, that after four days from the seizure on the third of October, the cloth being in the actual possession of the agent of the corporation, the collector could not have a constructive possession, and that he had, therefore, no possession from that time until the day of sale — -and did not keep the distress four clays. But it is apparent, that although in the actual possession of the agent, it was held for the collector, for it is given up to him by the agent when called for.

Had the agent, after four days, claimed to hold the cloth for the company, and the collector seized it again on the day of sale, it might have presented a different question. It is further urged, that after the seizure of the property, and an advertisement of it by the collector, if the property is to be considered in his possession constructively, he did not sell at the expiration of four days, but proceeded to advertise a second time, and sell on a subsequent day, six days after he had any right.

But it is settled that the keeping of the goods beyond the time prescribed by the statute, is mere nonfeasance, which will not make the collector a trespasser. 3 N. H. Rep. 69, Ordway vs. Ferrin; 15 Johns. 402, Gardner vs. Campbell. And it is difficult to conceive how the subsequent sale, if the property was duly advertised, being made in pursuance of the command in the warrant, can be such an abuse of his authority as to make him a trespasser ab initio. It is, therefore, unnecessary to consider whether the second advertisement might be regarded as a re-seizure.

If it might be, the objection that it did not appear that the distress was kept for the space of four days from that time (the advertisement being on the 9th and the sale on the 13th) must. fail,. for the reason suggested, in the argument of the defendant’s counsel. The same expression Occurs in the statute relative to sales of personal property on execution: and it has never been supposed that the statute prescribing the manner of .sales by collectors intended to introduce any new rule of computing time.

The day of the seizure is to be regarded as one, and the distress was of course kept for the space of four days after the second advertisement, before the sale. But this is not material to the decision of this case. I am of opinion.that the verdict should be set aside. Richardson, C. J. The statute makes it the duty of the collector to keep the distress four days, in order that the owner of the goods may have an opportunity to obtain them again by paying the taxes.

And as the goods are to be kept at the expense of the owner, it is made the duty of the collector, in order to prevent unreasonable expense on that account, to sell the goods within forty-eight hours after the expiration of the four days. These provisions in the statute must be strictly pursued. When one man takes and sells the property of another,, by virtue of power given by a statute which makes particular provisions for the benefit of him whose property may be taken, there must be no material deviation in the proceedings from the spirit of such provisions. 5 Mass. R. 402; 9 ditto, 265; 3 N. H. R. 69.

In this case, the cloth was seized on the 3d October, 1826, and was sold on the 13th October. No reason is shown why it was not sold within the time limited in the statute. It is, then, clear that the sale cannot be considered a regular sale upon the first seizure. But the cloth was advertised for sale a second time, on the 9th October; and the questions are — 1st. Can this be considered a new seizure ? and 2d, if it can, was it a legal seizure ? 3d. Can the sale on the 13th be considered as made by virtue oí the first seizure, and if so, is the officer to be treated as a trespasser ?

A' distress for taxes is in its nature an execution, When a statute says, money shall be levied by distress, this is an execution. Cases Tem. W. 3, 328, Rex. vs. Speed; 1 Burrow 579, Hutchins vs. Chambers. In general, the law in relation to seizures , and sales by virtue of a collector’s warrant is the same as the law in relation to seizures and sales by virtue of executions. It is well settled, that a mere seizure by a sheriff, or a collector, of sufficient goods to satisfy the claim for which the seizure is made, is not, ipso facto, a satisfaction of the claim.

Thus it is not a satisfaction, if the debtor agree with the officer to take back the goods. 2 N. H. R. 298, Churchill vs. Warren; 1 B. & A. 157, Lear vs. Edmunds; 8 Cowen 192, Ontario Bank vs. Hallett; 11 East 296, Gyfford vs. Woodgate. The goods may be taken from the officer by virtue of some better right in the government or in some individual, and the seizure be thus defeated. 3 Peters’ S. C. R. 292, Harris vs. Dennie; 9 Pick. 364, S. C.; 16 East, 254, Thurston vs. Mills; 1 Brod. & B. 370, Swain vs. Marland; 1 East, 338. The goods may perish without any fault on the part of the officer. , 1 Salkeld 248.

So if a collector of taxes, having seized goods sufficient to pay the tax, and advertised them for sale on a particular day, should, by reason of sickness, or other inevitable accident, be unable to attend the sale on the day, or to adjourn it to day when he could attend, and the distress should thus fail altogether, no good reason is perceived why he should not again seize the goods as a distress. In all these cases the seizure does not operate as a satisfaction.

And in debt upon a judgment, it is no plea simply to allege that goods of value -sufficient to satisfy the judgment have been taken by virtue of an execution, without alleging that the judgment is satisfied. 1 B. & A. 157, Lear vs. Edmunds ; 2 B. & B. 662, Hudd vs. Ravenor, and 2 B. & B. 36, Lingham vs. Warren. But when goods of value sufficient to pay a tax have been seized by a collector, it is not necessary in all cases that they should be sold and the proceeds applied in payment, to make the distress operate as a satisfaction of the tax.

The seizure may become a satisfaction, by the mere misconduct or negligence of the collector. It is well settled, that when goods sufficient to satisfy the claim for which they are taken, are seized, the claim is satisfied, even if he who made the seizure waste the goods, or misapply the proceeds of a sale of them. 4 Mass. R. 403; 12 Johns. 208, Hoyt vs. Hudson; 8 Cowen 192, Ontario Bank vs. Hallett; 2 L. Raymond 1072.

In an action of trespass for breaking and entering the plaintiff’s close and treading down his grass with hogs, the defendant pleaded in bar that the plaintiff distrained a hog damage feasant for the same trespass, and impounded it in the common pound. To this the plaintiff replied, that the hog escaped without his assent. Upon demurrer, the replication was adjudged insufficient, because it was not alleged that the escape was without any default on the part of the plaintiff. 1 Salkeld 248, Vasper vs. Eddows; Buller's N. P. 84.

If, then, it had appeared that the collector failed to sell the goods at the day in this case, through some unavoidable accident, and without any fault or negligence on his part, it seems he might have again seized the goods, and have legally sold them to pay the taxes. And under such circumstances, as the goods were in the hands of his agent, there seems to be no good reason why his advertisement of the goods again for sale should not be considered as a new seizure, on the 9th October. It does not seem to be necessary, to constitute a seizure, that he should place his hands upon the goods. 2 N. H. R. 318.

But no explanation is given in this case by the collector why he failed to sell on the day first appointed ; or why, he could not attend to the sale on that day, he did not adjourn it to a day when he could attend. For aught that appears, he may have failed to sell through mere wanton neglect. If a collector can at his pleasure neglect to sell on the first day, and then again legally seize the goods, he may evade altogether the wholesome provision in the statute, which declares that the goods shall be sold within a limited time after the seizure. It in fact renders that provision in the statute nugatory.

A second seizure in this case cannot then be legally sustained, until it is satisfactorily shown that the first seizure failed without any fault or neglect on the part of the collector. But I do not see any objection in this case to considering the sale as made by virtue of the seizure on the 3d October. The suit is between the collector and the owners of the goods. The goods remained in the hands of the person to whom the collector delivered them, from the time of the seizure until the day of the sale.

And it does not appear that the neglect of the collector to sell within the time prescribed by the statute created any expense, or was in any way injurious to the owners of the goods, The question then is, whether the neglect of the defendant to sell within forty-eight hours after the expiration of four days from the time of the seizure, made him a trespasser ? This question was settled in the case of Perrin vs. Ordway, 3 N. H. R. 69, where it was decided that a collector does not become a trespasser in such a case.

Upon the other points in the case I have nothing to add to what has been said by my brother Parker. Green and Upham, justices, concurring, the verdict was set aside, and Judgment for the defendant.