Wright v. Keith

24 Me. 158 | Me. | 1844

The opinion of the Court, Tenney J. taking no part in the decision, as he had once been counsel in the case, was drawn up by

Whitman C. J.

It is perceived, from the arguments of the plaintiff’s counsel, that he insists on his right to recover upon his second and third counts. One of these is for wanton abuse and ill usage, at the time of the arrest on the execution; the other for certifying, fot his services on said execution, illegal fees, by reason of which, he alleges, that he was detained in prison for the space of forty days. But in the report of the case it does not appear, that either ground of complaint was insisted on at the trial. All that would seem to have been agitated on that occasion had reference to the falsity of the defendant’s return of notice to the plaintiff, upon the citation in the first count set forth. It is true, nevertheless, that, by the declaration and pleadings, the other matters were, on the record, in issue between the parties; but would seem to have been unnoticed by the Court; and hence the ruling was manifestly without reference thereto.

We must now, however, consider whether the evidence, as reported, would have been deeiüed sufficient, in reference to either of those grounds, to have authorized a jury to have returned a verdict for the plaintiff. If it would, a new trial must be granted.

We will consider, first, of the alleged wanton violence and ill usage. No question is made but that the precept, by virtue of which the defendant acted, was in due form, and issued by a competent tribunal. He, then, was bound to execute it. For want of goods and estate of the plaintiff, it commanded him to arrest his person. The particular moment of time when it should be done, anterior to the return day of the precept, was intrusted to the discretion of the defendant. He would be expected to select the moment when it could best be accomplished. Much precaution would be requisite in arresting some individuals; while, as to others, an officer would know that it could be done at any time, and without difficulty. The dwellings of some individuals must be approached stealthily for the purpose ; and hence the evening would bo selected, and aid also. The defendant, in making the arrest in question, made use of these precautions; with what propriety may be gathered from the conduct of the plaintiff, the evidence in reference to which comes from his son. The plaintiff objected to going with the defendant that evening; and insisted on a postponement till the next day. It wa.s not for him to control the defendant in this particular. Yet, if the defendant had been without aid, it may, from what finally took place, well be doubted whether he would not have been compelled to desist. The moment it was discovered that aid was at hand, the plaintiff dropped upon the floor; and placed himself in a posture to require great exertion to move him. The son says, whether he braced his feet against the sides of the door or not, when in the act of being carried out, he could not tell; but that he traced blood from the door to the defendant’s wagon; and saw some on the plaintiff’s stocking; that no harsh language was used. This was all the evidence of violence ; and from it there is not the slightest ground to find that more force was used, than was indispensable to accomplish the arrest.

Now, as to the detention for the space of forty days, by reason of the alleged return of illegal fees upon the commitment, the burthen of proof was upon the plaintiff. It does not appear that he offered to pay, or would have paid either the fees, however correctly charged, or the debt. On the contrary, he took the poor debtor’s oath, without doing either. Moreover, in his declaration he does not specify the item or items of illegal fees ; nor does there appear to have been any attempt to do it at the trial. All the fees charged were not illegal; and if any of them were, they should have been particularly designated. The plaintiff is clearly without merits upon this point.

If the plaintiff can be considered as having established any legitimate cause of action, the foundation of it must be sought for in the falsity of the defendant’s return on the citation, set forth in-his first count. The citation itself was in due form ; and it was the duty of the defendant to have left with the plaintiff a true copy of it; but, in making out the copy, he left out the designation of the place, where the examination was to take place. This was, it would seem, at most, but an inadvertency on the part of the defendant. There could have been no reason to suppose it could have been done from design; and it cannot be reasonable to believe that the plaintiff could have supposed it was done intentionally. He could not have been under a misapprehension as to the object of the citation; nor of the consequences of his inattention to it; and it would not seem that he had the slightest solicitude concerning it. It certainly does not appear that he exhibited any. It would rather seem that he of choice preferred to let the worst happen that could occur; and then seek a vindictive satisfaction of the defendant for the oversight he had accidentally committed. If this were not the case, how easy would it have been for him to have inquired of the defendant, or of the justice who issued the citation, and have' ascertained the place appointed for the examination ? This would, to be sure, have been of some inconvenience to him; and for this he would have been entitled to an adequate remuneration; and the sum, for which the defendant consented to be defaulted, was confessedly ample for. that purpose.

But it is argued that he was under no obligation to make such inquiry; that he had a right to lie by, and let the worst come that could come, however remote from the cause, and however easy it might have been for him to have prevented it ;• and then hold the defendant responsible for the consequent injury. This certainly would not be in accordance with the duties incident to the social relations between man and man ; and it is believed is not sanctioned by the prescribed rules of law. “ In assessing damages the direct and immediate consequences of the injurious act are to be regarded, and not remote, speculative and contingent consequences, which the party injured might easily have avoided by his own act.” Loker v. Damon & al. 17 Pick. 284. “ If the party injured has it in his power to take measures, by which his loss may be less aggravated, this will be expected of him.” And again; “ if the party entitled to the benefit of a contract can protect himself from a loss, arising from a breach, at a trifling expense, or with reasonable exertions, he fails in social duty if he omits to do so.” Miller v. Mariners’ Church, 7 Greenl. 51. And in Berry & al. v. Carle, 3 ib. 269, which was trespass de bonis asportatis, the Court say, in relation to logs lodged on the original defendant’s dam, “ they could be removed only with as little injury as possible”; and the jury having found “that they could have been saved to the original plaintiff with little inconvenience to the original defendants,” it was held that the verdict was properly relumed for him. These dicta were uttered in reference to acts, which were voluntary and intentional, under a claim of right. With how much more force would they apply where the act complained of was evidently inadvertent, and which the individual, liable to be injured by it, must have apprehended to be so ?

But there is much reason for doubt, whether the damages justly recoverable in this action, might not have been much less than the sum for which the defendant consented to be defaulted. It does not appear to have been alleged in the plaintiff’s declaration, or to have been offered to be proved at the trial, that the plaintiff was in a condition, if he had appeared before the justices, to have obtained a discharge from arrest in that case. If he was not, and we have a right to presume he was not, as it may be believed he would otherwise have averred and proved the fact, could he have been entitled to recover any thing more than mere nominal damages on account of the falsity of the return? The seeming indifference which he manifested, concerning the object of the citation, tends to fortify the presumption, either, that he was not in a condition to obtain a discharge, or that he was not disposed to make an exhibit of his affairs.

On the whole, we think judgment should be entered upon the default.