| Mich. | Nov 11, 1886
Plaintiff- recovered a verdict below in trespass’ against both defendants, and Ingalls brings error. The trespass was not guare clausum fregit, but for personal violence, committed by Moriarity, who as an officer had a writ of possession to serve for a house occupied by plaintiff’s husband and herself, which was adjudged to be given up under the landlord and 'tenant act. Ingalls had the writ placed in the hands of Moriarity to serve, and the latter, meeting with opposition from plaintiff, seized and handcuffed her, and kept her so manacled for some time, while he put out the contents of the house, and completed his service.
The general issue was pleaded, with a special plea setting up that what was done was in overcoming unlawful resistance to Moriarity as an officer in service of process.
On the trial the court held that, as there was no valid notice, no justification could be shown, and refused to allow an amendment. It was further said to the jury that Ingalls was Jointly and equally liable with Moriarity for all that was done by Moriarity.
We think this was erroneous. It is questionable whether any plea or notice could entirely justify what Moriarity did. But in trespass all the circumstances of the transaction may be shown under the general issue, to have such effect as they deserve in determining the verdict, by mitigation or otherwise.
No one can be held liable as a trespasser at all for employing an officer to execute lawful process. It is the right of every one to have his regular and valid writ served and enforced. The officers of the law are bound to perform that duty, and cannot be blamed for doing it in a legal manner. Every one has a right to suppose the ministers of the law will not abuse their functions, and no one who. lawfully employs them is liable if they do. Michels v. Stork, 44 Mich. 2" court="Mich." date_filed="1880-06-11" href="https://app.midpage.ai/document/michels-v-stork-7929900?utm_source=webapp" opinion_id="7929900">44 Mich. 2. It is only where the party himself orders or encourages lawlessness that he can be treated as a joint wrong-doer, and then he is liable because he is actually a trespasser, and liable to the extent of his own misconduct.
There is nothing in the record which would justify putting Ingalls and Moriarity on the same footing, and we have discovered nothing to show that he was in any way whatever responsible as a trespasser.
The result of the ruling which put the two defendants in the same equal wrong was a heavy verdict, which may not have been excessive .as to Moriarity, but was not in any way sustainable as to Ingalls, and, as he has taken out the writ on his own behalf, the judgment must be vacated as to him, and a new trial granted, with costs.