Kenerson v. Bacon, 41 Vt. 573

Kenerson v. Bacon

41 Vt. 573 | Vt. | 1869

Tbe opinion of the court was delivered by

Peout, J.

The facts pleaded by tbe defendant and relied upon as justifying tbe arrest and imprisonment of the plaintiff, for which this action is brought, are substantially, that the defendant was a deputy sheriff and had for service a writ of attachment and capias against the plaintiff, issued in conformity to law, which he served by arresting and committing the plaintiff to jail, on his neglect to give security or bail for his appearance to answer to the suit thus commenced. The General Statutes (ch. 33 § 78) relating to the imprisonment of debtors, in effect provide -that whenever any writ shall issue as an attachment, the defendant in the process may, at the time of service on his body, notify the officer that he will appear before the authority issuing it and submit himself to examination, as to whether he is about to abscond or remove, and has money or other property secreted. Upon notice to the officer and notice to the plaintiff in the process, the provision is “ that he may appearand by § 80 of the same chapter, it is made the duty of the officer to convey the alleged debtor before the authority designated for examination and hearing, in respect to the facts set forth in the affidavit for capias, and justifying its issue. Pending this application, the officer has no right to commit to jail. (§ 80.) In the section first alluded to, it is further provided, that if the authority signing the writ shall not be of opinion that the defendant in the process and under arrest is about to abscond or remove from the state, and has money or other property secreted, he shall so certify and discharge the defendant. These provisions, clear and intelligible, entitled the plaintiff to an examination with a view to his discharge, provided the requisite notice was given the defendant for that purpose while in the custody of the officer and before commitment. It is right here the material question on this branch, of the case arises; the plaintiff on the evidence claiming that he notified the defendant before, and the defendant that it was after, such commitment. The process having been delivered the defendant for service, it was his duty, according to its direction, to arrest the plaintiff, but he was to *578discharge that duty in view of the plaintiff’s right to procure and give bail, or submit himself to examination in discharge of the arrest; the defendant, however, lawfully, by virtue of the process, retaining the personal custody of the plaintiff, or lodging him in jail for purposes of custody, until discharged ; or, if that should be refused, until a full commitment upon the writ. Until then, the custody of the plaintiff could not be legally transferred from the officer to the jailer. This is evident from § 61 of the chapter cited. By that provision a commitment to jail consists of a delivery of the person to the keeper of the jail, within the same, and a delivery of an attested copy of the writ, by virtue of which the commitment is made, to the jailer, with the officer’s return of commitment. It consists of having done and completed all that which constitutes a full service of the process, verified by the proper return of the officer. These are statute requisites, by which the conduct of the officer is to be regulated, and pointing out his duty ; and unless complied with, the jailer could not hold and detain the plaintiff, except for and in aid of the officer’s custody by virtue of the process, and simply as under aiTesfc. Tin's view justified the plaintiff’s theory of the case, upon the evidence showing that no copy of the process was left with the jailer until. after the defendant was notified of the desired examination, and also by the evidence that he was not at that time actually within the walls of the prison, or, as the statute expresses it, “ within the same.” If this was the fact, (and it should have been put to the jury,) it was the legal duty of the defendant, notwithstanding • what he did was intended as a commitment of the plaintiff, to have ■ taken him before the authority signing the writ for examination, refraining from committing.him on the process until that proceeding had been had and determined.

Another question arises in the case, and that is, as to the effect upon the defendant of his neglect or refusal to act upon the plaintiff’s notice or request, assuming-' it to have been given or made before the service of the writ was completed, and while the plaintiff was in his custody. Until this notice for examination was given, which, as the exceptions show, was on the morning-after the plaintiff was lodged in jail, the defendant, so far as ap--*579pears from the casé, acted in compliance with the law, and was in no way legally delinquent or in fault. But his remaining uncompleted duty in respect to the plaintiff’s arrest, his examination for discharge and his commitment to jail, were affected by the statute referred to. The negative part of the section prohibited a commitment until an examination, and its affirmative part, equally explicit, required the defendant to take or convey the plaintiff before the competent authority for that purpose ; in effect, suspending .the right of the officer to commit to jail until an examination was had,, as the statute provides. Assuming the fact to be as the testimony tends to show, the defendant was liable for an unwarrantable commitment of the plaintiff, in consequence of which he was deprived of an admitted right. The fact involving this result is, of course., for the jury to find under instructions applicable to this aspect of fihe case ; and should they find it against the defendant, then he was a trespasser ah initio, and must fail in his justification. “ To hold that the process is any protection in such a case is an evasion and abuse of the law.” 1 Smith’s L. C., 166 ; Bond v. Wilder, 16 Vt., 393; Briggs v. Gleason, 29 Vt., 78; Hall v. Ray, 40 Vt., 576.

As the charge does not embody these views, the judgment of y the county court is reversed and cause remanded.