Palmer v. Allen

• Decision Date: 16 March 1813
• Citation: 11 U.S. 550,3 L.Ed. 436,7 Cranch 550
• Parties: PALMER v. ALLEN
• Court: U.S. Supreme Court

11 U.S. 550

7 Cranch 550

3 L.Ed. 436

PALMER v. ALLEN.

March 16, 1813

Absent. TODD, J.

ERROR to the Supreme Court of Errors of the state of Connecticut, in any action of assault and battery and false imprisonment, brought by Allen against Palmer, who was a deputy marshal of the United States for the district of Connecticut and had served a process of attachment upon Allen, and committed him to prison for want of bail, without such a mittimus as is usual upon commitment on like process issuing from the state Courts.

Palmer pleaded a special justification under the writ of attachment issued out of the district Court of the United States for the district of Connecticut. His plea was, upon demurrer, adjudged bad, for want of shewing a mittimus; and that judgment was affirmed in the Supreme Court of Errors.^*

The question was now submitted to this Court, who were furnished with copies of the following opinions, delivered in the Court below.

Opinion of judge Brainard, in which the majority of the Court below concurred.

'The original action was trespass, for an assault and battery, and false imprisonment, in which the Defendant in error was Plaintiff; and to which the Defendant below, now Plaintiff in error, pleaded specially—that he was a deputy to the marshal of the United States for the district of Connecticut, and in that capacity had in his hands to serve a writ of attachment issued under the authority of the United States, returnable to the district Court of the United States for the said district; in virtue of which he attached the body of the Plaintiff below—read the writ in his hearing, and for want of bail committed him to the keeper of the jail in New Haven, &c. with whom he left a true and attested copy of said writ and process which he avers to be the same imprisonment and pretended trespass complained of, &c. to which there was a demurrer and joinder in demurrer, and adjudged by the Superior Court to be insufficient. On which this writ of error is brought—plea nothing erroneous.'- 'The first action was debt brought on a statute law of the United States for an alleged breach thereof.'

'Whether that law be constitutional or not, as it is unnecessary, it would perhaps be indecorous to discuss; and whether debt be the proper action to be brought on it or not, is unimportant for my purpose. The process was under a law, issued under the authority, in the hands of a marshal of, and returnable to a Court, all of the United States. The service appears to be arrest of the Defendants body, reading in his hearing, and for want of bail, commitment, &c. The authority of the jailer to receive and keep the Defendant, was a copy of the process without a mittimus.'

'Is this a justification? Is this a defence?'

'The first question is, in the state of Connecticut, in an action of debt, for instance, in point of service of an attachment returnable to a state Court, is a mittimus necessary to authorize a committment? If not, it settles this case, and there is manifest error. But if it be, the next question is, whether a mittimus be necessary in a process issued under the laws and authority of the United States, returnable to and cognizable by a Court of the United States, to be served in this state on a citizen of the same.'

'This proposition I think correct, that such is the constitution of the state of Connecticut, and from the infancy of her laws and jurisprudence has been.'

'That no man's person shall be imprisoned unless by judgment of Court, or direction and order of a magistrate.'

'In every instance of final process there is an order of commitment, a mittimus, contained in the body of the instrument, in the execution itself.'

'In all cases where the subject matter has been adjudged by a Court of competent jurisdiction, the officer's duty is pointed out and the extent of the debtor's or delinquent's liability is ascertained, the result is made, the end is known.'- 'On attachments, it will be agreed on all hands, that a man shall not be committed to prison, if he procure reasonable bail of the reasonableness or sufficiency of this bail, who is to judge? Is the officer in all instances? I apprehend not.'

'In case of an attachment, the direction to the officer indeed is, for want of estate, to attach the body of A. B. and him safely keep and have to appear before the Court. But the mode of this safe keeping and having to appear is pointed out and provided for by law.'

'The most ancient statute I find on the subject, entitled 'An act for regulating jails and jailers,' says, that no person or persons whatsoever shall be committed to prison, although arrested or seized by attachment, execution, or any other writ, or for non-payment of rates, debts or fines, or for any misdemeanor or capitol, or criminal offence, or any other cause, without a mittimus, granted and signed by civil authority, declaring the cause and ground of his commitment, requiring the jailer to receive and keep such person or persons in the prison until discharged according to law.'

'In a subsequent statute passed in May, 1706, entitled 'An act concerning officers levying executions,' it is enacted, that when any officer shall have a writ of execution to levy, &c. and doth seize the body, &c. and commit him to prison; a copy of the writ or execution signed by the officer and delivered to the jailer, shall be sufficient warrant or order for him to receive such person, and him hold in safe custody till delivered by law.'

'In the revision of the statutes, in the year 1750, the phraseology of the former statute was altered, and the latter was incorporated with it, under the title of 'An act concerning arrests and imprisonments for debt, damages, fines, &c. This statute has remained the same ever since, and its reading in relation to this subject is—That no person or persons for the non-payment of rates, fines, debts, or for any crime or offence, shall be committed to prison, without a mittimus granted and signed by civil authority, declaring the cause and ground of his commitment, requiring the jailer or keeper of the prison, to receive and keep such person or persons in the prison, until discharged according to law, unless where any proper officer, for want of estate, seize the body or bodies of any person or persons by an execution or distress or warrant for fines and rates, and commit him or them to prison, in which case a copy of the execution or distress attested and signed by such officer, and delivered to the jailer or keeper of the prison, shall be a sufficient warrant or order for him to receive such person or persons, and him or them to hold in safe custody till delivered by law.'

'From the broadness of the ancient statute it is apparent that in relation to all process, civil or criminal, mesne or final no person could be committed to prison without a mittimus, an instrument stating the cause, ordering the reception, and directing the detention signed by a magistrate, or as the expression is, civil authority.'

'In 1706, it occurred to the legislature that part of this provision was unnecessary; that in final process there was a mittimus in relation to that subject from the highest authority: hence the legislative dispensation, with mittimus in cases of executions.'

'When the legislature in 1750, incorporated the latter statute, which had made a distinction between final and mesne process, into the former, can it be supposed that they intended to narrow the grounds of the ancient provisions and regulations?'

'At the revision in 1750, it also occurred to the legislature, that there were other cases than executions where a mittimus, in the sense generally understood, would not only be unnecessary, but improper; hence the exemption was extended to distress or warrants for fines or rates.'

'The present statute says, that no person for the nonpayment of rates or fines, shall be committed to prison without a mittimus, unless indeed a distress or warrant for such rates and fines has been granted by proper authority, having competent jurisdiction.'

'The word debts in the statute still remains to be satisfied with a fair and reasonable construction. The original title of the act, was an act concerning arrests and imprisonments for debt, damage, fines, &c. Suppose the reading to be that, in an action for debt, no person shall be imprisoned without a mittimus. This would comprehend all actions of debt in a proper and technical sense, of course the present.'

'But this I suppose is too narrow a construction. The true meaning is commensurate with all actions by attachment, which sound in or claim debt or damage, and which by the process of a Court may be reduced into debt or damage. In all which cases, while in mesne process, before adjustment, there shall be a mittimus to authorize a commitment, after which, when liquidated, the execution speaks the order of the Court.'

'But the statute, since its existence in its present form, seems pretty generally to have had an uniform practical construction; the best comment perhaps that can now be made upon it. So far as I can learn, it has received in practice, in relation to mesne process, the same construction that was given to the former statute in relation to the same subject, and which the words of that statute absolutely and necessarily require. Both under the former and present statute, in all cases of attachment, a mittimus has been deemed necessary to authorize a commitment'

'But the second and perhaps more important question remains.'

'In a mesne process by attachment for debt, issued under the law and authority of the United States, returnable to a Court of the United States, to be served on a citizen of this state, within the same, to authorize a commitment, is a mittimus necessary?'

'The United States have a right to prescribe what mode of service for their own processes they may deem proper; and if they have pointed out a mode, that mode must be pursued: if they have not, it...