United States v. McNeily
| Decision Date | 17 February 1896 |
| Docket Number | 390. |
| Citation | 72 F. 972 |
| Parties | UNITED STATES, to Use of MOORE v. McNEILY et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
This suit was brought in the circuit court of Hinds county, state of Mississippi, by the United States, suing for the use of John L. Moore, against John S. McNeily, United States marshal for the Southern district of Mississippi, and the sureties on his official bond, to recover damages for a breach of said bond, in that the said marshal, under an indictment found in the circuit court of the United States for the Southern district of Mississippi against L. L. L. Moore for a violation of the revenue laws of the United States, and a capias issued therein, falsely arrested the said John L Moore at his home in Leake county in said district, against the protest that he was not the person named in and designated thereby, and did unlawfully, forcibly, and willfully take plaintiffs' usee into custody, and force and compel him, by threats and menace, to proceed to Jackson in said Southern district, the place appointed by law for the holding of said district court, and surrender himself to the said marshall upon the false pretense that said usee was the party intended to be indicted. And the plaintiff further avers that, being so brought to the said city of Jackson, he was thereafter, by said marshal, compelled to be and appear from time to time and term to term before the said district court of the United States, until the . . . day of November 1894, when he was discharged, and, in the interim that the said John L. Moore, plaintiff's usee was unlawfully imprisoned by the said marshal, and was for a long time, to wit, 11 months, put to great expense and loss of time subjected to great shame, humiliation, anxiety, trouble, and distress of mind, as well as brought into disrepute among his neighbors, by reason and because of the false and unlawful arrest and imprisonment above mentioned.
At the January term, 1895, the defendants filed a general demurrer to the declaration, and at the same term, by proper proceeding, removed the cause to the circuit court for the Southern district of Mississippi. At the May term of the circuit court for the Southern district of Mississippi, the demurrer was overruled, and thereupon three several pleas were filed. The first denied the breach of bonds, and asserted that the marshal did take the body of, and arrest, the said L. L. L. Moore, as required by the capias. The second seemed to be a general denial of the facts stated in the declaration, charging that the person now calling himself John L. Moore was, in point of fact, the same identical party named and described, and intended by the grand jury to be named and described, in the indictment set forth in the declaration, and in the capias under which said arrest was made, and that the arrest was lawful, etc. The third plea sets forth, in detail: That the said John L. Moore, plaintiffs' usee, appeared pursuant to the arrest, and in custody of the deputy marshal, before a United States commissioner, and there executed a recognizance as follows: "Be it remembered that on this 22nd day of November, A.D. 1893, before me, a commissioner duly appointed by the circuit court of the United States for the said Southern district of Mississippi, personally came Jno. L. Moore (indicted under name of L. L. L. Moore), as principal, and J. D. Moore and W. D. McMillan, as sureties, and jointly and severally acknowledged themselves to owe to the United States of America the sum of $500, to be levied on their goods and chattels, lands and tenements, if default be made in the condition following to wit: The condition of this recognizance is such that, if the said Jno. L. Moore shall personally appear before the district court of the United States, in and for the district aforesaid, at Jackson, Mississippi, on the first day of the next regular term thereof, then and there to answer the charge of having, on or about the . . . day of September, 1893, within said district, in violation of section . . . of the Revised Statutes of the United States, unlawfully engaged in the business of illicit distilling, and then and there abide the judgment of said court, and not depart without leave thereof, then this request to be void; otherwise, to remain in full force and virtue.
-- 'Which said recognizance was duly executed in conformity to law, and filed amongst the papers of said cause, constituting a part of the record thereof.'
And that afterwards the said plaintiffs' usee did again appear before the said commissioner, and execute a further recognizance for appearance as follows:
-- 'Which recognizance was duly executed, and was filed among the papers of said cause and became a part of the record thereof.'
That afterwards, to wit, on the 8th day of November, 1894, the said plaintiffs' usee appeared in said court in the presence of the district attorney and the judge, in open court, and, a jury being impaneled, the said plaintiffs' usee was than and there arraigned on the said indictment by the name of L. L. L. Moore, and did then and there plead not guilty, and go to trial on the merits of said cause, the said trial resulting in a verdict of not guilty.
Demurrers were filed to the foregoing pleas, which, upon hearing, were sustained as to the second plea, but overruled as to the first and third. And thereupon the plaintiffs took issue on the first plea, and replied to the third plea by admitting that, as therein charged, said John L. Moore executed the recognizances before the commissioner for his appearances but charged that, at the time and place, he, said John L. Moore, protested that he was not the said L. L. L. Moore, and declined and refused to sign the said bonds otherwise than by his name John L. Moore, and was induced to sign and coerced to sign said bonds, under threat of imprisonment and actual imprisonment, as the condition for the restoration of his liberty, whereof he had been unlawfully deprived; the said marshal of the United States then and there pretending...
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