29 A.2d 751 | Conn. | 1943
The plaintiff sought to recover damages for the claimed unlawful release, through the administration of the poor debtor's oath, of its judgment debtor imprisoned in jail under a body execution. The justice of the peace who administered the oath, the sheriff as jailer and the deputy jailer are the parties defendant. The trial court rendered judgment for the defendants and the plaintiff has appealed.
The statute provides that any prisoner held under civil process may apply to a justice of the peace to take the poor debtor's oath; that notice of the application, signed by the justice, shall be given "the adverse party, if an inhabitant of the state, otherwise to his attorney," to appear and show cause why the oath should not be administered; that the notice shall be served "at least four days inclusive before the day specified for administering such oath"; that the justice "shall inquire into the matter and, if no sufficient reason is shown to the contrary," shall administer the oath; and that the jailer shall thereupon discharge the prisoner unless the creditor shall give to him "immediate notice in writing" that he intends to apply for a review and shall deposit board money with the jailer. General Statutes, 2027. The statute does not expressly *548
provide that the justice shall issue a certificate that he has administered the oath but this is implied in the nature of his office and the character of the function. Anderson v. Dewey,
The prisoner applied to the defendant Blumenthal, a justice of the peace, to have the oath administered, and on February 13th Blumenthal issued a citation to the plaintiff and its attorneys to appear before him on February 20th at 1 p.m. to show cause why the oath should not be administered. Copies of the notice were served on the plaintiff's attorneys on February 15th and 17th and on the plaintiff on the latter day. The dates of service were stated in returns by the officers making service. No appearance having been made for the plaintiff, the justice, at about 1:30 p.m. on February 20th, administered the oath and issued a certificate to that elect. He then handed to the deputy jailer a certificate which recited that, service having been made on the plaintiff and its attorneys, "as shown by the officer's return thereof," a hearing was held by him at the jail at 1 o'clock on February 20th, when the parties appeared and, the prisoner having been examined and no reason to the contrary appearing, he administered the oath, and that the prisoner "is hereby discharged from jail." The hearing was in the jailer's office at the jail, and the defendant Cook, the deputy jailer, was present there with the debtor, his attorney and the *549 justice, from 1 p.m. until the oath was administered; after administering it, the justice handed the certificate to Cook and, having read it, Cook immediately released the prisoner. About fifteen minutes later an attorney for the plaintiff appeared at the jail but the prisoner had departed.
The general principle determining the civil liability of a justice of the peace in such a situation as the one before us is stated in Prince v. Thomas,
As regards the other defendants, the sheriff is made responsible by statute for any fault or negligence of the deputy jailer; General Statutes, 2006; and we need only consider the latter's liability. He claims that *551
he is protected because he acted in reliance upon the certificate of the justice that he had administered the oath which was valid and regular upon its face. The second part of the general principle quoted above, from the Prince case, that where process is issued by a magistrate without jurisdiction "all who are voluntarily and actively engaged in its procurement and execution, are trespassers," to some extent runs counter to the equally well-established principle which, briefly and generally stated, is that "A process valid on its face protects the officer who serves it." McGann v. Allen,
The certificate in this case, instead of reciting that proper service had been made, states that service had been made on the plaintiff and its attorney as shown by the officer's return, and it contains certain statements which were not true; thus it recites that "said parties" appeared at the hearing at 1 p.m., whereas there was no appearance for the plaintiff before the oath was administered, and the matter was heard at 1:30, not at 1 p.m. But if the jailer ought, in view of the reference to the return of service, to have examined it, he would have found that it was served on the plaintiff on February 17th; and if, as we have held, service on that day was sufficient to give colorable support, under the terms of the statute, to the decision of the justice that this constituted proper service, certainly the jailer was justified in accepting that decision, as evidenced by the issuance of the certificate. If he was entitled to rely on the certificate as evidencing proper service, it was of no consequence, as regards his right to act under it, whether or not the plaintiff did *553
in fact appear. There was an old rule, which in Nugent v. Wrinn,
When we speak of process "valid on its face," in considering whether it is sufficient to protect an officer, we do not mean that its validity is to be determined upon the basis of scrutiny by a trained legal mind; nor is it to be judged in the light of facts outside its provisions which the officer may know. Watson v. Watson,
There is no error.
In this opinion the other judges concurred.