Gibson v. Holmes

• Decision Date: 26 October 1905
• Citation: 78 Vt. 110,62 A. 11
• Parties: GIBSON v. HOLMES et al.
• Court: Vermont Supreme Court

62 A. 11

78 Vt. 110

GIBSON

v. HOLMES et al.

Supreme Court of Vermont. Franklin.

Oct. 26, 1905.

Exceptions from Franklin County Court; Tyler, Judge.

Trespass by Burton J. Gibson against A. G. Holmes and another. The court directed a verdict for defendants, and plaintiff excepted. Reversed.

Argued before ROWELL, C. J., and MUNSON, START, WATSON, HASELTON, and POWERS, JJ.

C. G. Austin & Sons and A. A. Hall, for plaintiff. Hogan & Hogan, for defendant Holmes. G. F. Ladd, for defendant Phareuf.

ROWELL, C. J. Trespass for false imprisonment. The defendants separately justified under a justice writ in favor of the defendant Holmes against the plaintiff, issued as a capias, brought to recover for goods sold and delivered, and served by the defendant Pharneuf by arresting the plaintiff in Orleans county. The plaintiff claims that he was in bankruptcy in Massachusetts, where he lived, and therefore was privileged from arrest, as his discharge would release him from the debt sued for. But he can take nothing by this claim, for it does not appear that he was in bankruptcy. The certified copy of the docket entries in the bankruptcy court of Massachusetts, introduced to show that he was in bankruptcy, was no* admissible, as those entries were no record but only minutes from which to make a record. Austin v. Howe, 17 Vt. 654; Armstrong v. Colby, 47 Vt. 359. Nor was the plaintiff's testimony that he filed his petition in bankruptcy before his arrest sufficient, though admitted without objection; for it does not appear when he filed it, and it might have been so long before the arrest that there hat been a final adjudication on his application for a discharge, which would end his privilege, and the presumption of continuance cannot be invoked for want of sufficient data, if for no other reason.

But it was error to direct a verdict for the defendants, for the testimony tended to show, if it did not thereby appear, that the defendants were trespassers ab initio. At common law, when an officer arrests a man on mesne process in a civil action, he may make any place his prison; for the writ is, "ita quod, habeas corpus ejus coram," etc., which is a general authority. But when the authority is special, he must imprison accordingly; and, if he imprisons elsewhere or otherwise, he is a trespasser. Swinstead v. Lyddal, 1 Salk. 408; Bac. Ab. "Trespass" (D). But our statute has changed the common law in respect of a general authority, and makes the authority special in such cases, notwithstanding the command of the writ remains the same; for it provides that, when a defendant is arrested on mesne process in a civil action, the officer shall commit him to jail in the county where the arrest is made, unless otherwise directed by law, if there is a legal jail there, unless he exposes sufficient property to secure the officer, or some person becomes surety to the satisfaction of the officer by indorsing his name on the writ as bail. V. S. 1701, 1703. It appearing that there was a legal jail in Orleans county, where the arrest was made, and it not being otherwise directed by law, it was the duty of the officer to commit the plaintiff there in default of exposing property or procuring bail; and it was the plaintiff's right to be committed there, unless he waived that right, and the testimony tended to show that he did not. Ellis v. Cleveland, 54 Vt. 437. But, instead of committing him there, by direction of Holmes' attorney, given pursuant to an understanding with Holmes, the officer took him to St. Albans and lodged him in the Franklin county jail for safe-keeping till the time of trial, where he remained about an hour in a cell, and then, by advice of counsel whom he consulted about leaving him there and about making his return if he did leave him there, the officer took him back to Richford, where he was released by order of Holmes or his attorney on July 30th, having been arrested at North Troy on July 28th. This, if done without the plaintiff's consent, made the officer a trespasser ab initio. Bond v. Wilder, 16 Vt. 393; Hall v. Hay, 40 Vt. 576, 94 Am. Dec. 440; Clayton v. Scott, 45 Vt. 386.

It is claimed that the officer might keep the plaintiff where he pleased, notwithstanding the statute, because, if he committed him to jail in Orleans county by delivering him to the keeper thereof within the same, and giving the keeper an attested copy of the writ with his return thereon, as he would have to do by statute, he would thereby have transferred the custody and control of him to the jailer, and so have put it out of his power to obey his precept by having him before the justice at the time and place of trial. But In re Jennison, 74 Vt. 40, 51 Atl. 1061, holds the other way. There the relator was arrested on a justice writ issued as a capias, and committed to jail for want of bail; and yet the court said it was the duty of the officer to obey his precept by producing the relator at the time and place of trial, and, because he did not, the relator was discharged, but by agreement of the parties. That case is express authority for the proposition that by obeying the statute in respect of committing the officer does not put it out of his power further to obey his precept by having the defendant before the justice at the time and place of trial. To hold otherwise would bring the precept and the statute into conflict, whereas they should be made to harmonize, if possible. And there is no difficulty in harmonizing them; for, although the officer, by taking the defendant out of jail for production in court, would be incapacitated to recommit him on the original writ, because that, being returned into court, could not be taken out for that purpose, yet the court especially as it is a court of record, would have ample authority to order him committed for want of bail, and such commitment would be deemed to be on the original writ, the same as it is by statute when a surety on mesne process delivers the principal into court in discharge of himself. Although there seems to be no statute for this, yet the authority inheres in the court, as much as the authority did before the statute to do what the statute says shall be done when the principal is surrendered, as shown by Abells v. Chipman, 1 Tyler, 377. And see 1 Tidd, Pr. 285, 286. Cf. Worthen v. Prescott, 60 Vt. 68, 11 Atl. 690, and State v. Shaw, 73 Vt. 159, 50 Atl. 863, and following.

The cases referred to in support of said claim are not in point What is said in Whitcomb's Adm'r. v. Cook, 38 Vt. 477, about the officer having a right to put the defendant into any suitable place for safe-keeping, was said in respect of keeping him after notice that he would appear before the magistrate for examination for discharge from arrest which suspended the right to commit until the examination was had. In Kenerson v. Bacon, 41 Vt. 573, commitment was made in disregard of such a notice, which was held to deprive the defendant of his right to go before the magistrate, because, as it would seem to have been thought, the officer could not take him out for that purpose. But this is not authority for saying that he could not take him out to produce in court, concerning which the precept commanded him, but did not command him concerning taking him before the magistrate for examination for discharge from arrest. In Durant's Case, 60 Vt. 176, 12 Atl. 650, the process on which the arrest was made was a warrant in a criminal case. What is there said about its having "been repeatedly held in civil cases that an officer may use the common jail for the safekeeping of a person arrested on a capias, whom it is his duty to keep safely so to have him to appear at a time and place named," referring to Whitcomb's Adm'r v. Cook, 38 Vt. 477, is disapproved, if it means less than a commitment in the statutory sense. In Kent v. Miles, 68 Vt. 48, 33 Atl. 768, and 69 Vt. 379, 37 Atl. 1115, the precepts were warranis in a criminal case, and the authority was general, as neither the warrants nor the law required commitment to jail. But the plaintiff was committed, and rightly, it was held. In the Miles Case the court expressly said that the case did not come within V. S. 1701, and said that that section relates to service of legal process when the officer is "directed by the process to commit to jail." Counsel seize upon this as making in their favor. But the language of the section makes it broader than that. It is, when "required by law to commit to jail." This embraces the case at bar; for, although the process did not require commitment to jail, the statute did.

And the defendant Holmes is a trespasser ab initio, as well as the officer, for he procured the suit to be brought and the arrest to be made, and is responsible for his attorney's direction to have the plaintiff taken to jail in St. Albans; for that direction was within the scope of his attorney's authority by virtue of his employment as such, who was thereby invested as Holmes' agent with large and liberal discretion and most ample authority in everything pertaining to the collection of the debt and the control and service of the process. Willard v. Goodrich, 31 Vt. 597, where it...