Whitten v. Bennett

• Citation: 77 F. 271
• Court: U.S. District Court — District of Connecticut
• Decision Date: 04 December 1896
• Parties: WHITTEN v. BENNETT et al.

77 F. 271

WHITTEN v. BENNETT et al.

United States Circuit Court, D. Connecticut.

December 4, 1896

W. H Baker, for plaintiff.

W. L Bennett, per se.

L. N Blydenburgh, for John R. Leete.

TOWNSEND District Judge.

This is an action by George E. Whitten, of Newton, Mass., against William L. Bennett, of New Haven, Conn., executor of the will of Tilton E. Doolittle, deceased, late of said New Haven, and John R. Leete, of said New Haven. The complaint alleges that said Doolittle, while stateS attorney for New Haven county Conn., drew an indictment charging plaintiff, together with J. Edward Lee, with murder in the second degree, and, knowing that he had no evidence to support said indictment, handed it to the grand jury, and told them that, if they found probable cause against Lee, they should mark the indictment, 'A true bill,' and that, as plaintiff was not in the state, they were to pay no attention to it as connected with him; that the grand jury were satisfied that there was no case against the plaintiff, but, by mistake and clerical error, indorsed said indictment, 'A true bill'; that although Doolittle knew that the grant jury did not indict the plaintiff, and that the indorsement was caused by said Doolittle's statements to them, he obtained a requisition, and sent the other defendant, Leete, to bring the plaintiff from Massachusetts; that Leete was instructed by Doolittle to bring the plaintiff with all speed and haste from Massachusetts, so that the plaintiff could not have the benefit of the writ of habeas corpus; that plaintiff was arrested by a warrant from the governor of Massachusetts, and taken to the police station at Newton; that the defendant Leete falsely and fraudulently represented to the marshal and keeper of the Newton police station that the plaintiff was charged with murder in the first degree,-- an offense not bailable-- and that thereby the plaintiff was not admitted to bail in Massachusetts, as otherwise would have been the case, and was presented from suing out a writ of habeas corpus; that plaintiff was a surgeon in good practice and of good reputation; that he was subjected to imprisonment and great indignity; suffered great pain of mind; lost a large part of his income; expended enormous sums of money in obtaining his release; and has been injured in his good name and practice. The damages claimed are $100,000.

To this complaint, the defendant Bennett demurs, upon the following grounds: (1) The cause of action does not survive against the executor. (2) The decedent, Doolittle, was not responsible in a private action, for acts done by him as state's attorney within the line of his powers and duties. (3) It is not alleged that the prosecution was instituted without probable cause. (4) It is not alleged that the prosecution has been terminated by the acquittal or discharge of the...