Kent v. Miles, 65 Vt. 582

Kent v. Miles

65 Vt. 582 | Vt. | 1893

The opinion of the court was delivered by

ROSS, Ch. J.

The county court sustained the defendant’s demurrer to the plaintiffs replication. To this the plaintiff excepted. ' The plaintiff now contends that if his replication is defective, it is a sufficient answer to the defend- . ant’s plea, which he claims is insufficient in several particulars. The demurrer, though special, reaches the first defect in substance in pleading. The declaration is trespass for false imprisonment. The plea, both in the opening and closing, professes to justify every specification of trespass laid in the declaration. It alleges that the defendant was sheriff of Orleans county, and as such, received from the Orleans county court, then in session, a warrant commanding him to arrest, and have the defendant forthwith before the county court then in session, to answer to an indictment then pending, charging him'with having committed the crime of perjury; that as such sheriff he served the' warrant by arresting the defendant at Montpelier in the county of Washington, on the day named in the declaration, and took him to Newport to have him before the Orleans county court to answer the indictment, as required by the warrant; that the court not then being in session, he then and there kept and detained him for a short space of time, using no more force than was necessary for his safe detention, for the purpose of having him appear before the county court as commanded in the warrant; “all of which, by the record and proceedings thereof now in the office of the clerk of the court at Newport, will more fully appear; which are the said assaulting, seizing, beating, ill-treating, and forcing and compelling the plaintiff to go on divers public highways and by rail from Montpelier to Newport, imprisoning, keeping and detaining *588the plaintiff in prison, in the introductory part of the plea mentioned, and which are the supposed trespasses whereof the plaintiff hath complained in his declaration against the defendant.” This is the substance of the plea. Neither the declaration alleges, nor the plea admits, that the defendant imprisoned the plaintiff by committing him to jail. If the warrant, as is inferable, only commanded the defendant to arrest the plaintiff and bring him before the county court to answer the indictment pending against him, neither the declaration nor the plea allege that he went beyond the command of the warrant. He might be obliged to keep him in some safe place over night, and while he was ascertaining whether the court would again be in session to receive the plaintiff. Hence the defendant might have rightfully imprisoned the plaintiff as alleged in the declaration, and as asserted in the plea, by virtue of warrant. He could not go beyond the fair scope of the command of his warrant. State v. Lamoine, 53 Vt. 568. On arriving at Newport with the plaintiff, and not finding the court in session, the defendant would have the right to detain him a reasonable time to ascertain and determine whether he should be able to deliver him to the court. The court might be taking a recess and would shortly again be in session. The plea is a full answer to the declaration, though it states the time of imprisonment to be shorter than it is stated in the former, inasmuch as it says that the imprisonment it describes is the same imprisonment set forth in the declaration.

The plaintiff further contends that there can be no justification under a returnable process unless its return is alleged. This contention is correct. Wright v. Marvin, 59 Vt. 439; Ellis v. Cleveland, 54 Vt. 437. As to the plea, the demurrer is general and does not reach argumentativeness in statement. 1 Ch. PI. 540. Spencer v. Southwick, 9 Johns. 314. The plea alleges that his proceedings on the warrant will appear from the record thereof in the office of the clerk of *589the court. This is inferentially and argumentatively alleging that defendant did return his warrant. Hence the plea in bar has the substance of a good justification and will avail when encountered by a general demurrer only.

We think the county court correctly adjudged the replication insufficient. What it avers about the defendant designedly retaining the warrant in his hands so that he could not reach Newport with the plaintiff until after the court adjourned, would be available in an action on the case. If available in trespass, the plaintiff should have set forth such facts as would render the defendant liable for an abuse of the process, under a new assignment, for it is doubtful if the plea was intended to justify a trespass arising from an abuse of the process, and as to that kind of trespass the plea can be fairly said to be evasive. What it alleges in regard to the duty of the defendant to have taken him before the county court in Washington county to have his bail fixed, and in regard to committing him to the Washington county jail, is not law. The Washington county court had no jurisdiction of the crime with which the plaintiff was charged and no power to fix or take bail for the plaintiff's appearance before the Orleans county court. The latter had the right to issue the warrant it did to have the plaintiff brought before it to answer the indictment there pending against him at common law. Says Mr. Blackstone, Vol. 4 Com. 290: “A warrant may be granted in extraordinary cases by the privy council or Secretaries of State ; but ordinarily by justices of the peace. This they may do in any cases when they have a jurisdiction over the offence ; in order to compel the person accused to appear before them; for it would be absurd to give them power to examine an offender unless they had also power to compel him to attend and submit to such examination, and this extends undoubtedly to all treasons, felonies and breaches of the peace; and also to all such of-fences as they have power to punish by statute.” This com*590mon law right of magistrates and courts has never been curtailed or taken away by statute, but has been exercised in this State from time immemorial. There is left of the replication only the allegation that the defendant discharged the plaintiff from arrest and then detained him. This is not in form or substance a new assignment of another and different trespass from those set forth in the declaration and justified by the plea, 1 Chitty Pl. 625 et sequiter: The plaintiff might have newly assigned for the alleged detention after the defendant had discharged him from arrest under the warrant. 1 Chitty Pl. 627. But instead, he has in substance denied that the defendant’s claimed justification covers all the trespasses he has set forth in his declaration. In substance this is a traverse of the plea in the form of a replication, and demurrable. 1 Chitty Pl. 527. It is one of the special causes set forth in the demurrer. The replication is not double, as claimed by the defendant, inasmuch as the matters therein, other than that the defendant discharged the plaintiff from arrest under the warrant but still wrongfully detained him, are not in law a good answer to the plea, and the wrongful detention alleged is an answer only as a denial of the allegation of the plea that the defendant’s proceedings were all had and taken in the due execution of the warrant.

Judgment affirmed and cause remanded.