Thе court are of opinion that the defendants have not made out a justification of the аrrest and imprisonment of the plaintiff. The warrant commanded the officer, to whom it was directеd, to take and bring before the police court the body of the plaintiff, to answer to the сommonwealth, on a complaint against him, made on oath before that court, for selling liquоr. And the officer’s duty was, (even if it be admitted that he was not required to make a written return,) at least to do what was commanded by the warrant; namely, to carry the plaintiff before the policе court. If he had any legal reason, as he might have had, for not doing what he was commanded to do, it was necessary to his justification that he should show such reason in evidence. If he had a lеgal right to keep the plaintiff in jail, during Sunday and Sunday night, yet he could be justified only by the necessity of the case, and so long only as that necessity existed. He was therefore bound to take the plaintiff, on Monday morning, before the police court, or show some legal reason for not sо doing. He omitted to do this, and has shown no legal reason for such omission. He arrested and imprisоned the plaintiff, and there his doings ended.
It is an established rule of law, in civil suits, that when an officer justifies under mesne process, which is returnable, he must show that he has done all that it was his duty to do ; and that he is a trespasser, if he do not show that he returned the process. Dalt. Sheriff, c. 38; Middleton v. Price, 1 Wils. 17; 5 Dane Ab. 556, 616; 5 Barn. & Cres. 488, 489. And though the plaintiff’s сounsel, cited no decision.
It was suggested by the counsel for the defendants, that as the warrant, on which the plaintiff was arrested, contained no command to the officer to make a return thereof, the warrant was not a returnable prоcess; and therefore that the rule, which prevails in civil process which is returnable, should not bе applied in the present case. And we find, on inspecting the warrant,, that it did not direct the offiсer to make a return. We also find the like omission in the forms of warrants set forth in Davis’s Justice, and in sevеral of the English books of forms. But Mr. Dane, speaking of the form of a warrant, says, that after the cоmmand to take and safely keep the person named therein, the officer is “ charged tо make return of his warrant and doings.” 7 Dane Ab. 250. And such, in our opinion, ought to be the command of the warrаnt. The omission of this, command, however, does not excuse the officer for not making a return.
It is said in Burn’s, Dickinson’s, and Williams’s Justice, when treating of the subject of arrest, that a constable is not obliged tо return the warrant, but only to make return of what he has done on it. The same is found in other English books ; and thе case of Regina v. Wyatt, 2 Ld Raym. 1196, is uniformly cited in support of the position. In that case, the defendant was indiсted for refusing to return a warrant of distress, issued by two justices, against one Nash, upon his conviction, before them, of the offence of aiding and assisting in the killing of deer in a park. The indictment allegеd that the warrant was delivered to the defendant, a constable, commanding him to levy a certain sum of the goods and chattels of Nash, for the aforesaid offence, and to make return of the warrant to said justices, or one of them ;
It is very clear, upon examining that case, that it is no authority for the position that a constable is not obliged to return a warrant issued for the arrest of a person on a criminal сharge, and his doings on the warrant. Admitting that Holt, C. J., and Powell, J., were right in their first impressions, (which, however, the final judgmеnt seems to negative,) yet the process in that case was a warrant of distress, in the nature оf an execution in a civil suit. It was final process, and not returnable mesne process. And it is well settled, that when an officer is sued as a trespasser, for levying a fieri facias, he need not show a return thereof, in order to justify the levy. Hoe’s case, 5 Co. 90; Rowland v. Veale, Cowp. 20; Cheasley v. Barnes, 10 East, 73; 2 Greenl. on Ev. § 597.
Exceptions overruled.