10 Johns. 85 | N.Y. Sup. Ct. | 1813
Lead Opinion
delivered the opinion of the court. The question of justification turned upon this fact, whether the plaintiff, contrary to his duty, aided or assisted the rioters in their resistance to the execution of the warrant, or in their escape. There were several, and some of them strong circumstances, from which the jury might have inferred that fact against, him; and if so, the defendant was justified in arresting him. The sheriff is, ex officio, a conservator of the peace; and it is not only his right, but his duty to arrest all persons, with their abettors, who oppose^ the execution of process. And, as Sir Mathew Hale has observed, (2 Hale's H. P. C. 85.) these ministers of public justice 66 should
This case ought, therefore, to be reviewed by another jury, and a new trial is accordingly awarded, with costs to abide the event of . the suit.
Concurrence Opinion
I cannot concur in the rule for a new trial. The idea that the defendant was constructively present, after his departure from the place where the defendants in the warrant were, and whilst actually absent, at a distance of several miles; and that the persons whom he had stationed to watch those persons against whom he had process, were acting under his immediate orders, and had power to arrest those persons, appears to me quite extravagant. The offence on which the warrant was issued was a breach of the peace, and it cannot be pretended that for such an offence, then past, private individuals could arrest; nor will it be contended that the sheriff could authorize an arrest, by parol, he being absent at the time. Chief Justice Holt doubted whether an arrest made by a bailiff’s servant would be
New trial granted.