Administrator of Whitcomb v. Cook

| Vt. | Jan 15, 1867

The opinion of the court was delivered by

PieRpoint, Ch. J.

This is. an action for false imprisonment. The case shows that the plaintiff’s intestate, Cyrus Whitcomb, was arrested and imprisoned upon a writ in favor of the defendant against him, issued by a justice of the peace for the county of Rut-land, and commanding the arrest of his body.

The only question now made in the case is whether an affidavit had been filed with the authority issuing such writ according to the requirements cf the statute, prior to its having been issued. The statute declares that no person who is a resident of this state, or of any other of the United States, shall be arrested or imprisoned by virtue of any mesne process, which shall issue on any contract, express or implied, made or entered into after the first day of January, 1839. Provided, that if tlie plaintiff, his agent or attorney, praying out a writ or* such a contract shall file with the authority issuing such a writ art affidavit, stating, etc., then “ such writ may issue against and be served upon the body of the defendant.

From the language of the statute it is apparent that the legislature intended to require that the affidavit should be filed with the magistrate issuing the writ, before it should be issued. No question is made in the case but that the affidavit in this case was duly sworn to, and was sufficient in form and substance to warrant the magistrate in issuing the writ against the body. The only question is, was it filed with the magistrate before the writ issued? It appears from the bill of exceptions that the defendant went to his attorney to get a writ against the body of Whitcomb. The attorney had a blank justice writ that had been signed by the magistrate ; this he filled out in proper form to make it an attachment against the body 'T he also made the necessary affidavit which was signed and sworn to by the defendant. They then went to the office of the magistrate to file the affidavit; finding the office locked and the magistrate absent, the attorney then slipped the affidavit under the door of the office and left it there. The defendant then delivered the said writ to an officer for service, who, on the same day, arrested said Whitcomb on said writ and committed him to jail. When the said affidavit was-so put under the office door of the magistrate, he was absent from the county and had been for several days, and did not return until the next, or the next day but one thereafter, and then on going to his office found said affidavit on the floor, which was the first knowledge he had of the affidavit, or the issuing of the writ.

In Phillips v. Wood, 31 Vt. 322" court="Vt." date_filed="1858-11-15" href="https://app.midpage.ai/document/phillips-v-wood-6576542?utm_source=webapp" opinion_id="6576542">31 Vt. 322, it was held, that inasmuch as the party was entitled to his writ as a matter of right, on filing the requisite affidavit, the magistrate having no discretion in the matter, all that was fairly implied by the term “ filing,” used in the statute, was that the affidavit should be deposited with the magistrate, permanently, for the inspection of all concerned.

In Parkhust v. Pearsons et al., 30 Vt. 705" court="Vt." date_filed="1858-08-15" href="https://app.midpage.ai/document/parkhurst-v-pearsons-6576461?utm_source=webapp" opinion_id="6576461">30 Vt. 705, it was held, that to comply with the statute in this respect, the affidavit must be left with the magistrate subject to his control.

It is apparent from the language of the statute and the decisions above referred to that something' more is required than the bare placing of the affidavit upon the premises of the magistrate, where it may, or may not, subsequently come to his knowledge. In this «ase the affidavit cannot be said to have been left with the magistrate or put under his control; neither the magistrate nor any other person having charge of the office, had any knowledge of its existence. It was not put into the office in the legitimate course of business ; it was not put in the charge of any person having the right to be in the office, nor put among the files of the magistrate. It was forced in on to the floor of the office and left to be swept out the next time the room was subjected to that operation. This we think was not a compliance with the letter or the spirit of the statute.

I think that in all cases the affidavit should be brought to the knowledge of the magistrate before the writ issues, and should be left with him subject to the inspection of all concerned.

In Phillips v. Wood, it did not appear affirmatively that the magistrate saw the affidavit before the writ issued; the magistrate testified that he -did not recollect about it; but from the circumstances, and the fact that it was found, in its appropriate place among his files, when sought for, some time afterwards, the inference naturally arises that it was left with him at the time the writ issued, in the absence of all evidence tending to show that it was not.

The party against whose body a writ has been issued has a right to know, on application to the magistrate who issued it, whether an affidavit has been filed, and if so, an opportunity to ascertain whether it is sufficient to justify the arrest.

This right would be of but little value, if the writ may issue without the magistrate’s having any knowledge either of the writ or of the affidavit, and at a time when he is absent from home for an indefinite period, and the affidavit placed where no one can obtain access to it until the magistrate returns.

The judgment of the county court is affirmed.