Aldrich v. Aldrich

49 Mass. 102 | Mass. | 1844

Wilde, J.

This is a writ of personal replevin, and the question is whether the plaintiff, at the time of the service, was in the custody of the defendant, by force of a lawful warrant, issued by a court of competent jurisdiction. The plaintiff was then in the defendant’s custody by virtue of an arrest made by him under a warrant from the assessors of the town of Men-don, directed to Stephen Taft, duly appointed treasurer ana collector of taxes for that town; the defendant having been before appointed as his, the said Taft’s, deputy. The first objection to the validity of the arrest is, that the assessors were not a court of competent jurisdiction. But whatever may be the strict technical meaning of the word “ court,” we cannot doubt that a board of assessors was intended to be included by that term, within the meaning of St. 1837, c. 221, <§, 1, on which this process is founded. If this were not the construction of that section, every person arrested for the non-payment of his taxes would be entitled to his liberation, which it. is impossible to suppose could have been intended by the legislature.

It was also objected that the collector had no right to delegate his authority to his deputy to serve the warrant, before the same had been issued. But the defendant was not a special deputy, with a limited authority to serve the particular warrant on which the plaintiff was arrested, but a general deputy, by virtue of the power given to the collector by the Rev. Sts. c. 15, § 60; and, unquestionably, such an appointment of a deputy may be made at any time after the collector is appointed to his office.

Another objection to the defendant’s authority is, that the warrant was not directed to the deputy. But we hold that this was not necessary. It was directed to the collector, and delivered to the deputy, who was thereupon legally authorized, and bound, to execute the precept. Writs and processes in Eng land are always directed to the sheriff only; but if delivered to his under-sheriff, he is bound to serve them ; or he, as well as the sheriff, may make out warrants to his bailiffs to serve them Dalton’s Sheriff, 103, 117. Bac. Ab. Sheriff, H. 4. Kirby, 240. Writs in this Commonwealth are directed to the sheriff or his deputy ; but this is required by the form of the writs as prescribed by statute. If, however, in such a case, a writ is not so directed, it is matter of form only, and does not make the service of the writ unlawful. And so it was decided in Hearsay v. Bradbury, 9 Mass. 95.

We are therefore of opinion that the arrest in this case was lawful, and that this writ cannot be maintained It was contended by the plaintiff’s counsel, that the plaintiff, before the arrest, had been discharged from the payment of his taxes, by a general discharge under the bankrupt law. But this is no legal objection to the validity of the arrest. See Wilmarih v. Burt, 7 Met. 257. The officer was not bound, at his peril, to determine this question. If the plaintiff’s discharge has the legal operation contended for, (as to which we give no opin ion,) he should have paid the taxes, and contested that question with the town. In proceeding against the officer, he has clearly mistaken his remedy, if he has any.

Plaintiff nonsuit.