Kent v. Miles
| Decision Date | 28 August 1893 |
| Citation | 27 A. 194,65 Vt. 582 |
| Parties | JAMES M. KENT v. L. D. MILES |
| Court | Vermont Supreme Court |
GENERAL TERM, 1893
Trespass for false imprisonment. Pleas, the general issue and special plea of justification. Heard at the March term, 1893 TAFT, J., presiding, upon the defendant's demurrer to the plaintiff's replication. Demurrer sustained and exceptions by the plaintiff.
Judgment affirmed and cause remanded.
T. J. Deavitt and J. P. Lamson for the plaintiff.
Before: ROSS, CH. J., ROWELL, MUNSON, AND START, JJ.
The county court sustained the defendant's demurrer to the plaintiff's replication. To this the plaintiff excepted. The plaintiff now contends that if his replication is defective, it is a sufficient answer to the defendant's plea, which he claims is insufficient in several particulars. The demurrer, though special, reaches the first defect in substance in pleading. The declaration is trespass for false imprisonment. The plea, both in the opening and closing, professes to justify every specification of trespass laid in the declaration. It alleges that the defendant was sheriff of Orleans county, and as such, received from the Orleans county court, then in session, a warrant commanding him to arrest, and have the defendant forthwith before the county court then in session, to answer to an indictment then pending, charging him with having committed the crime of perjury; that as such sheriff he served the warrant by arresting the defendant at Montpelier in the county of Washington, on the day named in the declaration, and took him to Newport to have him before the Orleans county court to answer the indictment, as required by the warrant; that the court not then being in session, he then and there kept and detained him for a short space of time, using no more force than was necessary for his safe detention, for the purpose of having him appear before the county court as commanded in the warrant; "all of which, by the record and proceedings thereof now in the office of the clerk of the court at Newport, will more fully appear; which are the said assaulting, seizing, beating, ill-treating, and forcing and compelling the plaintiff to go on divers public highways and by rail from Montpelier to Newport, imprisoning, keeping and detaining the plaintiff in prison, in the introductory part of the plea mentioned, and which are the supposed trespasses whereof the plaintiff hath complained in his declaration against the defendant." This is the substance of the plea. Neither the declaration alleges, nor the plea admits, that the defendant imprisoned the plaintiff by committing him to jail. If the warrant, as is inferable, only commanded the defendant to arrest the plaintiff and bring him before the county court to answer the indictment pending against him, neither the declaration nor the plea allege that he went beyond the command of the warrant. He might be obliged to keep him in some safe place over night, and while he was ascertaining whether the court would again be in session to receive the plaintiff. Hence the defendant might have rightfully imprisoned the plaintiff as alleged in the declaration, and as asserted in the plea, by virtue of warrant. He could not go beyond the fair scope of the command of his warrant. State v. Lamoine, 53 Vt. 568. On arriving at Newport with the plaintiff, and not finding the court in session, the defendant would have the right to detain him a reasonable time to ascertain and determine whether he should be able to deliver him to the court. The court might be taking a recess and would shortly again be in session. The plea is a full answer to the declaration, though it states the time of imprisonment to be shorter than it is stated in the former, inasmuch as it says that the imprisonment it describes is the same imprisonment set forth in the declaration.
The plaintiff further contends that there can be no justification under a returnable process unless its return is alleged. This contention is correct. Wright v. Marvin, 59 Vt. 437, 9 A. 601; Ellis v. Cleveland, 54 Vt. 437. As to the plea, the demurrer is general and does not reach argumentativeness...
To continue reading
Request your trial