Fuller v. Bowker

• Court: Michigan Supreme Court
• Writing for the Court: Christiancy J.:
• Citation: Fuller v. Bowker, 11 Mich. 204 (Mich. 1863)
• Decision Date: 28 April 1863
• Parties: Esbon G. Fuller and others v. George W. Bowker

11 Mich. 204

Esbon G. Fuller and others v. George W. Bowker

Supreme Court of Michigan

April 28, 1863

Heard April 8, 1863 [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Branch Circuit.

The action was brought by Bowker against Sylvester P. May and his attorneys, for false imprisonment in causing Bowker to be arrested on a capias ad satisfaciendum issued upon a judgment rendered in said Circuit Court, in favor of May against Bowker, in an action of replevin.

The first count of the declaration was in the ordinary form averring no special damage. The second count was as follows:

"And also, for that the said Sylvester P. May, Esbon G. Fuller and Caleb D. Randall, on the first day of May, one thousand eight hundred and sixty, with force and arms made another assault on the said George W. Bowker, to wit, at Coldwater, in said county of Branch, and then and there beat, bruised and illtreated him the said plaintiff, and then and there imprisoned him, the said plaintiff, and kept and detained him in prison there without any reasonable or probable cause whatsoever, for a long time, to wit, for the space of sixty days then next following, contrary to the laws of this State and against the will of the said plaintiff. By reason of which said several premises he, the said plaintiff, was greatly hindered and prevented from performing and transacting his necessary affairs and business, by him during that time to be performed and transacted, and was also prevented and hindered from engaging and embarking in business which the plaintiff might and would otherwise have engaged and embarked in, and which would have brought great profits to the said plaintiff; and also thereby he, the said plaintiff, was forced and obliged to and did necessarily pay, lay out and expend a large sum of money, to wit, the sum of two hundred dollars, in and about endeavoring to become released from such imprisonment, and in and about the support and maintenance of himself and family during such imprisonment, to wit, at Coldwater aforesaid, and all to the great damage of the said plaintiff of two thousand dollars, and therefore he brings suit, etc."

Upon the trial, David N. Green was called as a witness on the part of the plaintiff, and, upon his direct examination, testified in substance as follows:

"In the year 1859 and 1860 I was acting sheriff of the county of Branch. About the first day of May, 1860, I arrested the plaintiff Bowker on an execution which I have here. Mr. E. G Fuller (one of the defendants) gave me the execution. He told me he wanted I should collect it, and, if Bowker couldn't pay it, put him in jail. He (Fuller) said he thought Bowker would pay it if he found I was going to arrest him. I did arrest him. I can't say how long I had him in custody; it was until he was discharged by the court."

On his cross-examination he said:

"The directions given me by Mr. Fuller about serving the writ were given by way of explanation of the writ, telling me what the writ required me to do. I wanted explanation in regard to it. He said I could let it run, but it would be at my own risk if I did. I did not put Bowker in jail. After I arrested him he went away to see his counsel. I arrested him by telling him I had a writ for him, and he might consider himself arrested, and showed him the writ.

"On reflection, I don't know certainly that I showed him the writ. I didn't shut him up after that at any time. He went where he pleased, except there was an understanding between him and me that he shouldn't go out of the county. So far as regarded any forcible or actual restraint, he went where he pleased. I never took him to the jail. I have stated, as far as I now recollect, all that I did by way of arresting him."

On his direct examination resumed, he further testified as follows:

"It was in Coldwater, at John Root's office, that I saw Bowker, and I think we went down stairs together before I told him what I wanted; at least we went away from where other persons were. The reason I didn't commit him to jail was, that after he had been to see counsel he gave me a bond. After he executed that, I suffered him to go at large. I don't know when, in reference to the time of arrest, the bond was given."

The capias ad satisfaciendum was then given in evidence, and the bond offered. It was an ordinary bond for the jail limits, reciting the arrest on the said capias. The defendants objected to its reception, but the objection was overruled, and exception taken. The plaintiff also proved, under objection, an order made by the Circuit Court setting aside the capias as irregular and void.

Alvin T. Lamphere was then called and sworn as a witness on the part of the plaintiff, and testified that the plaintiff's business, prior to May 1st, 1860, had been that of constable and collecting and securing claims.

The plaintiff's counsel then asked the witness whether the business in which the plaintiff was engaged involved the necessity of his going outside of the county; which question was objected to by the defendants' counsel, but the objection was overruled by the court, and exception taken.

The witness answered: "I know that it did, at times, call him out of the county."

The plaintiff's counsel then asked the witness to state whether the plaintiff was applied to to go out of the county and do business after his arrest by the sheriff; which question was objected to by defendant's counsel, and such objection was overruled by the court; and the witness answered: "I know he was applied to twice after his arrest to go out of the county." The evidence being closed, the counsel for defendants requested the court to instruct the jury, among other things, as follows:

"That in actions of replevin, a writ of execution, commonly called a ca. sa., may lawfully issue, and that, therefore, in this case, the execution proved to have been issued upon the judgment recovered in the replevin suit by Sylvester P. May against George W. Bowker, was properly and lawfully issued.

"That if the jury are satisfied from the evidence that, at the time the bond for the jail limits was given by Bowker, he was not actually in custody, but had been permitted by the sheriff to go at large, and was at large, the bond had no legal force, and the plaintiff was under no obligation to remain within the jail limits.

"That if the sheriff, after having arrested the defendant in the execution, permitted him to go at large, it was a voluntary escape, and the sheriff had no power afterwards to control him, or require him to give a bond; hence, he can recover for the technical arrest only."

These requests were denied, and the jury were instructed:

That the execution which the plaintiff claimed, and which the defendants admitted, was issued on the judgment in favor of Sylvester P. May against George W. Bowker, the plaintiff in this action, could not be issued on such a judgment, although such judgment is valid. That it is prohibited by the Constitution and laws of this State.

That the validity of the bond which was given by said Bowker to the sheriff, was not a question for the jury. Nor was it a question for the jury whether Bowker was under obligation to remain within jail limits or not.

The jury under this charge returned a verdict for the plaintiff of seventy-five dollars.

Among the errors assigned in this court were, first, the reception of the bond in evidence; third, admitting Lamphere's evidence that Bowker's business did at times call him out of the county; fourth, admitting the evidence of the same witness that Bowker was applied to twice after his arrest to go out of the county and do business; fifth, holding the ca. sa. to be void; sixth, refusing to instruct the jury that if they were satisfied from the evidence, that at the time the bond for the jail limits was given by Bowker, he was not actually in custody, but had been permitted by the sheriff to go at large, the bond had no legal force, and the plaintiff was under no obligation to remain within the jail limits; seventh, instructing them that the validity of the bond which was given by said Bowker to the sheriff was not a question for the jury; nor was it a question for the jury whether Bowker was under obligation to remain within the jail limits or not.

Judgment reversed,...