| Vt. | Jan 15, 1897
Action for false imprisonment, plea, general issue and notice. The plaintiff in the court below waived the counts in case and claimed to recover only in trespass. The defendant is an attorney and as such on March 14, 1892, having received a note against the plaintiff for collection, made a capias writ against him, and on March 15th made his affidavit that the plaintiff was about to abscond or remove from this state and filed it with a justice of the peace. The justice then signed and issued the writ which was made returnable May 2, 1892, and was sent by the defendant by mail to a deputy sheriff to serve and return. The plaintiff was not in this state March Í4th nor 15th, and no service of the writ having been made in its life, the date was afterwards changed to May 14th, and the return day to June 16th.
The plaintiff’s evidence tended to show that he was arrested on the writ with the dates thus changed, on May 25th, and gave bail for his appearance. The officer testified that the dates were changed by the defendant but he was unable to say whether before or after the arrest.
The defendant’s evidence tended to show that he did not change the dates * nor direct them to be changed; that he gave no direction to the officer to serve the writ after the alterations had been made; that he had no knowledge of any alterations until after the service and return, and that he thought that the officer returned the writ to him either’ on the day or the day after the service and then told him that his, the officer’s, daughter had changed the dates.
The question as to-the defendant’s liability seems to have depended mainly upon whether he changed or directed the dates to be changed after the writ was issued, and if not, whether he ordered the arrest after the changes were made. These were questions of fact and were decided by the jury. Some exceptions were taken to the rulings and the charge which we will consider.
There is no practice by which the notice could have been
The alleged admission of the defendant at the trial in the justice’s court was immaterial to the plaintiff. At most it tended to show that the defendant then thought the suit had been properly brought and that he acted in good faith in the matter.
It was proper to admit the original note in evidence under the general issue upon the question of exemplary damages. It showed a cause of action upon which the suit was founded.
It was clearly admissible to show what the proceedings were before the justice, and no objection seems to have been made that this was shown by the files instead of by the record.
The remark of defendant’s counsel to which the plaintiff objected seems to have been made in reply to a statement of plaintiff’s counsel, and not as a matter in' evidence, and was not a ground of exception.
The exception upon which the plaintiff most relies is to the refusal of the court to hold the defendant liable as matter of law upon his own testimony. It appears that he made a lawful capias writ and sent it to an officer to serve and return, and that he had no knowledge of alterations in the writ until after the plaintiff had been arrested and given bail and the writ had been returned to the defendant. There is no evidence of a common design between the defendant and the officer to do an unlawful act. The defendant’s purpose was lawful, to collect a debt by legal process. The law is well settled by the authorities cited on the defendant’s brief that, as the defendant did not aid, advise nor command the commission of the tort, nor have
But the plaintiff insists that, as the defendant proceeded with the suit to judgment after he knew of the. alteration of the writ he thereby became liable on the ground that he approved of the tort and derived benefit from it. It was held in Hunter v. Burtis & Ellsworth, 10 Wend. 358" court="N.Y. Sup. Ct." date_filed="1833-05-15" href="https://app.midpage.ai/document/hunter-v-burtis--ellsworth-5514086?utm_source=webapp" opinion_id="5514086">10 Wend. 358, that where an illegal arrest had been made, the attorney who appeared to advocate the cause was not responsible unless he officiously interposed in directingthe arrest. See Kirkwood v. Miller, 73 Am. Dec. 142, notes, where the general rule is stated that an attorney is not liable for a trespass committed by an officer in overstepping the bounds of his process, or acting in a manner which the writ, if legal, would not justify.
The court below certifies that no claim was made during the trial and argument that the arrest was for the benefit of the defendant and that the court’s attention was in no way called.to it; therefore no question is before us in respect to benefits derived by the defendant. He was acting as attorney and not for his own benefit, and the deputy sheriff was not his servant and agent, but a public officer. We find no error in the trial.
Judgment affirmed.