Clark v. Tilton, 68 A. 335

68 A. 335 | N.H. | 1907

Every arrest is prima facie a trespass (Jackson v. Knowlton,173 Mass. 94; 12 Am. Eng. Enc. Law, 2d ed., 724); and according to the rule of the common law, an officer could not avail himself of civil or criminal process to justify an arrest, unless he returned the writ or produced the prisoner with the warrant before the court to which the process was returnable (Barrett v. White, 3 N.H. 210, 229; Parker v. Pattee,4 N.H. 530; Poor v. Taggart, 37 N.H. 544; Taylor v. Jones, 42 N.H. 25; Boston Maine R. R. v. Small, 85 Me. 462; Wright v. Marvin, 59 Vt. 437; Gibson v. Holmes, 78 Vt. 110; Tubbs v. Tukey, 3 Cush. 437; Brock v. Stimson, 108 Mass. 520; Williams v. Ives, 25 Conn. 568,573), or unless it was made to appear that the prisoner had so conducted with reference to the officer's omission that he had estopped himself from interposing the omission to the officer's use of the process to justify the arrest. Wright v. Marvin, supra; Ellis v. Cleveland, 54 Vt. 437; Williams v. Babbitt, 14 Gray 141; Phillips v. Fadden, 125 Mass. 193; Caffrey v. Drugan, 144 Mass. 294, 296; Joyce v. Parkhurst, 150 Mass. 243,246; Douglas v. Barber, 18 R. I. 459; Mulberry v. Fuellhart, 203 Pa. St. 573; Twilley v. Perkins, 77 Md. 252; Richardson v. Dybedahl,14 So. Dak. 126; N.E. Sher. Const. 283, 284; 19 Cyc. 338.

In Parker v. Pattee, supra, it was said that an action of trespass could not be maintained against an officer who had made an arrest upon civil process, for his failure to return the writ to court, if he delivered the writ to the plaintiff's attorney and a settlement was made by the parties before the return day. This view of the law must have proceeded upon the theory that, the suit having been settled by agreement of the parties, the process could be used to justify the arrest, on the ground that the settlement was conclusive or prima facie evidence of an agreement that the person arrested would not interpose the omission to the officer's use of the process as a justification. Paine v. Farr, 118 Mass. 74.

In the service of criminal process, while it is the duty of an officer, having made an arrest, to take the prisoner as soon as circumstances will reasonably permit before the court to which the warrant is returnable for hearing, still this duty is not so imperative that its performance, at least as between the officer and the prisoner, may not be omitted; and if omitted at the prisoner's request, of such a nature that the prisoner may not be estopped to interpose the omission to the officer's use of the warrant to justify such acts under it as were regular and legal. That this is the law in many jurisdictions may be seen from an examination of the cases above cited; and no reason appears why this should not be so, if the prisoner's request not to be returned before the court is made of his own free will and is not procured unfairly or through coercion.

Again, it is the law of this jurisdiction, that if an arrest is made for a just cause, upon a warrant which is regular and legal upon its face and issued from a court of competent jurisdiction, and the imprisonment consequent thereon is made use of to extort money from the prisoner, or to compel him against his will to pay a debt, such conduct makes the imprisonment a duress, which will render every act done under it voidable and make those directing or participating in the improper use of the process liable as trespassers ab initio. Richardson v. Duncan, 3 N.H. 508; Severance v. Kimball, 8 N.H. 386; Shaw v. Spooner, 9 N.H. 197, 200; Colby v. Jackson, 12 N.H. 526, 533, 534; State v. Weed, 21 N.H. 262; Breck v. Blanchard, 22 N.H. 303, 310, 311; Mullen v. Brown, 138 Mass. 114; Wood v. Graves, 144 Mass. 365; Bath v. Metcalf, 145 Mass. 274; Everett v. Henderson, 146 Mass. 89; White v. Company, 181 Mass. 339. In Shaw v. Spooner, supra, Parker, C. J., expressed the view of the court in this language: "It must be distinctly understood that it is wholly illegal to use the criminal process of the state to extort money, or even compel the payment of debts. It was not provided for any such purpose. If a creditor is desirous of collecting a demand lawfully due to him, the laws have provided remedies deemed by the legislature suitable and competent for that purpose."

In the present case the court instructed the jury, in substance, that the only question for them to consider was one of damages; that the defendant Tilton had no right to enter into a contract with the plaintiff whereby he obtained a conveyance of the plaintiff's homestead right and personal exemptions in settlement of his account against him; and that the defendant Cram acted unlawfully in not presenting the plaintiff before the court and in permitting him to enter into the contract with Tilton. These instructions cannot be sustained, for, as we have seen, the jury should have been told that, to entitle the plaintiff to recover in this action against Cram, they must be satisfied either (1) that the plaintiff did not freely and of his own volition request the officer not to return him before the court, and is not estopped to take advantage of the officer's omission to do so, or (2) that the officer made use of the plaintiff's imprisonment to compel him against his will to transfer his property to Tilton in payment of the debt; and as respects the defendant Tilton, they should have been told that they must be satisfied that he, either directly or through Cram, made use of the plaintiff's imprisonment to compel him against his will to transfer his property in payment of the debt. The charge of the court would also give one the impression that the jury were instructed to assess such damages as resulted to the plaintiff in consequence of the suppression of the criminal prosecution. If this is its meaning, it is clearly wrong. The damages to be assessed are such as will compensate the plaintiff for the injury he has sustained because of the arrest.

It is not deemed advisable at this time to consider the questions raised by the exceptions to evidence. At another trial the same evidence may not be offered, and if offered, the issue may not be the same. The exception to the charge is sustained, and the order is,

Verdict set aside.

All concurred.