Thatcher v. Weeks

• Citation: 79 Me. 547,11 A. 599
• Parties: THATCHER v. WEEKS and another.
• Decision Date: 17 December 1887
• Court: Supreme Judicial Court of Maine (US)

11 A. 599

79 Me. 547

THATCHER

v. WEEKS and another.¹

Supreme Judicial Court of Maine.

December 17, 1887.

On exceptions by plaintiff from superior court, Kennebec county.

Action of trover brought by the plaintiff, captain of the Salvation Armyin Augusta, against the mayor and city marshal for the alleged conversion of certain drums, for the beating of which in violation of a city ordinance the plaintiff and his followers had been arrested. At nisi prius the verdict was in favor of the defendants, and the plaintiff alleged exceptions.

M. S. Holway, for plaintiff. A. M. Goddard, for defendants.

EMERY, J. One of the defendants was the city marshal of Augusta, and had arrested the plaintiff for violation of a city ordinance in beating drums. The case does not show what the officer did with his prisoner, but we may assume that he did his duty, and took him within a reasonable time before the proper court for trial. We may also assume that the court duly disposed of the charge. At the time of the arrest, the officer also took from the plaintiff the drums, and had kept them for something over three months, when the plaintiff, after demand, brought this action of trover for their value. The officer did not bring the drums before any court or magistrate, nor did he obtain any order or decree from any magistrate as to their disposition. The officer (the defendant) claims it was no part of his duty so to do. He claims that, for the purpose of preventing any further violation of the city ordinance, he could lawfully take the drums thus being unlawfully used, and could lawfully retain them in his own possession so long as he had reason to believe, and did believe, that the plaintiff would immediately again use the drums in the same unlawful manner if restored to him. The principle thus contended for by the officer would enable him to detain the team of a person arrested for too fast driving, so long as he (the officer) believed, with reason, the owner would immediately repeat his offense of too fast driving if the team were restored to him. Does the power of executive officers extend so far?

It is common learning that an officer may, without a precept, arrest any person he finds committing an offense. It is also well known that he must within a reasonable time bring his prisoner before the proper court, or obtain a legal precept for detaining him. A failure to do so may make the officer a trespasser. Rev. St. c. 133, § 4. An officer making an arrest upon a criminal charge may also take from the prisoner the instruments of the crime, and such other articles as may be of use as evidence upon the trial. These may not be confiscated or destroyed by the officer, however, without some order or judgment of a court. We do not find any authority or reason for the officer's rendering any judgment in the matter. He holds the property, as...