1

avi nostri, et eas ei nondum solvit ut dicitur, Tibi praecipimus quod predictam pecuniam de terris et catallis ipsius I. in balliva tua sine dilatione levari facias, ita quod eam habeas in cancellaria nostra in crastino Nativitatis sancti Johannis Baptistae proxime futuro, ubicunque etc., prefato M. ibidem liberandam, et hoc nullatenus omittas. Et habeas ibi hoc breve. Teste etc.

1034. JOSEPH STORY. A Selection of Pleadings in Civil Actions. (1829. 2d ed., p. 608.) . . . Plea of Justification for Trespass under an Execution. And the said D. comes and defends &c., when &c., and says (actio non) because he says, that one A. A., of &c., on &c., sued out of the clerk's office of the Court of C. P. within and for the county of &c., a writ of execution against the said plaintiff in due form of law, for the sum of &c., damages, and the sum of &c. costs of suit, which writ was returnable into said Court, to be holden at &c., on &c., which said writ thereafterwards, to wit, on the same day, was delivered to the said D., then and ever since a deputy-sheriff, duly appointed and authorized under B. B., sheriff of said county to be by him duly executed. And the said D. further says, that afterwards, to wit, on &c., at &c., by virtue of said writ of execution, he took the said goods and chattels in said declaration mentioned, as the property of the plaintiff, to satisfy the said execution, and safely kept the same at the expense of the said plaintiff, for the space of four days next after they were so taken, and advertised the same to be sold at public vendue to the highest bidder . . . and afterwards, on &c., he made due return of the same execution, with his doings thereon, according to the precept thereof, particularly describing the said goods so taken and sold, and the sum for which each article was struck off in his said return; and this he is ready to verify: Wherefore &c.

Section 1. Action under a Warrant Void or Voidable.

(a) WARRANT ERRONEOUSLY ISSUED BY JUDGE HAVING JURISDICTION 1035. ANON. A Treatise concerning Trespasses Vi et Armis. (1704. p. 109.) Justification to false imprisonment, or where and in what cases a man may justify the imprisonment of another, and where not. By officers. Take this for a rule: The justification shall be good though the act be tortious; for that it was done by order of law. . . .

1036. CASE OF THE MARSHALSEA. (1613. 10 Co. Rep. 68, 76.) [Printed ante, as No. 989.]

1037. COTES v. MICHILL

KING'S BENCH. 1681

3 Lev. 20

TRESPASS for breaking his house, and taking his goods, against a bailiff and the lessor in ejectment. The plaintiff pleaded an habere facias possessionem, and a warrant thereupon, and so justifies. The lessor pleads non culp. The plaintiff demurred to the plea of the

bailiff, because he shews no judgment whereupon the habere facias possessionem was founded. But per CURIAM; The plea is good, for the sheriff and his bailiffs are bound to obey the King's writs, without enquiry after the judgment. But if the party himself had justified, he must have shewn a judgment as well as a writ. Judgment for the defendant.

1038.

WILMARTH v. BURT

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1843

7 Metc. 257

Two actions of trespass for assault, battery and false imprisonment. The defendant, a deputy sheriff, pleaded the general issue, and set forth, by way of defence, that the assault, &c. were committed by him in the execution of civil process, by arresting the defendants upon an execution duly issued against them from the court of common pleas. At the trial, it was proved or admitted that, on the 9th of July, 1842, an execution, in the usual form, was issued against the plaintiffs jointly, as co-partners, upon a judgment in the court of common pleas, recovered by E. W. Chaddock, on a contract made on the 2d of October, 1837; that this execution was returned unsatisfied, and that an alias, in the common form, was issued on the 18th of August, 1842, upon which the plaintiffs were arrested by the defendant, and committed to the jail in Taunton; that they immediately gave bond for the liberty of the jail limits, went at large, and never surrendered themselves. It also appeared that the plaintiffs had taken the benefit of the insolvent law of this Commonwealth, and had obtained a discharge under it, in the usual form, dated March 6th, 1841, and that this discharge was exhibited to the defendant before he made the above mentioned arrest and commitment. The defendant admitted that he had a bond of indemnity from the execution creditor, which he required before he would arrest the plaintiffs on the execution.

Upon these facts, the defendant's counsel requested the Court to rule that the actions could not be maintained, because trespass will not lie against an officer for the execution of process regularly issued wherein he is commanded to arrest the body of the party therein named as defendant; because the plaintiffs could and should have pleaded their discharge, during the pendency of the action against them, in which said Chaddock's judgment was recovered, and have caused the form of the execution to be varied, pursuant to the Rev. Sts. c. 97, §§ 10, 11, so as not to run against their bodies; and because the remedy of the plaintiffs, if they were unlawfully arrested, was by an application to a court for a discharge, by habeas corpus or otherwise. The judge, before whom the trial was had, refused this request, and instructed the jury, for the purpose of the trials, that the plaintiffs were

entitled to recover; and a verdict was returned, in each case, for the plaintiff, subject to the opinion of the whole court.

Coffin & Pratt, for the plaintiffs. The defendant, as he knew that the plaintiffs were not liable to be arrested on execution, is not within the rule by which an officer is excused for serving a process issued by a court having jurisdiction, and legal on its face. . . .

SHAW, C. J. These two cases depend on the same principle and the decision of one settles both. Each is an action of trespass vi et armis for an assault and false imprisonment, and the trespass relied upon was the arrest of the plaintiff, on an execution, by the defendant, who was a deputy sheriff. The plaintiffs seek to avoid this justification, by showing that they had obtained a certificate of discharge under the insolvent law of Massachusetts [thus making void any process of execution for prior debts], which discharge was obtained long after the date of the contract on which the judgment was recovered, and that they exhibited their discharge to the defendant at the time of the arrest. .

The execution was in common form, authorizing and requiring the officer to take the property of the debtor, to satisfy the execution, and for want thereof, to arrest him. In making the arrest, therefore, he followed precisely the command of his precept. As a general rule, the officer is bound only to see that the process, which he is called upon to execute, is in due and regular form, and issues from a court having jurisdiction of the subject. In such case, he is justified in obeying his precept, and it is highly necessary to the due, prompt, and energetic execution of the commands of the law, that he should be so. Fitzpatrick v. Kelly, cited 3 T. R. 740. Cameron v. Lightfoot, 2 W. Bl. 1190. "It is incomprehensible," says Lord KENYON, in Belk v. Broadbent, 3 T. R. 185, "to say that a person shall be considered as a trespasser who acts under the process of the court." . . . The same rule is recognized in Sanford v. Nichols, 13 Mass. 288, where Parker, C. J., says, "it will not do to require of executive officers, before they shall be held to obey precepts directed to them, that they shall have evidence of the regularity of the proceedings of the tribunal which commands the duty. Such a principle would put a stop to the execution of legal process." If the plaintiff in such case has any remedy it is not against the officer, who has simply executed the regular precept of a court having jurisdiction, but by applying for his discharge out of custody, or by audita querela, or by an action on the case against the party who thus wrongfully armed the officer with power to arrest him, upon the ground of its being, on his part, a malicious arrest. . .

The fact that the officer took an indemnity, can make no difference; it was to avail him only in case he had mistaken in regard to his duty. But whether he had an indemnity or not, is of no importance to the plaintiff; it did not convert into a wrong an act which was itself right and justifiable. Verdicts set aside, and plaintiffs nonsuit.

1039. MARTIN v. COLLINS

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1896

165 Mass. 256, 43 N. E. 91

TORT, for false imprisonment. At the trial in the Superior Court, before SHELDON, J., it appeared in evidence that the plaintiff was duly sentenced by the Police Court of Lowell for drunkenness, on September 9, 1893, to six months' imprisonment at the workhouse in Lowell; that the Court issued a precept or mittimus upon the sentence in due form, and committed the same for service to one Cawley, an officer authorized to serve it, who by virtue thereof took the plaintiff to the workhouse and left him there in execution of the sentence, and left with the defendant what purported to be a copy of the mittimus, duly attested by himself, with his return thereon; that in the original mittimus the term of imprisonment was correctly stated to be six months, and in the certified copy it was stated to be eight months; and that otherwise the attested copy was in the same words and figures as the original. The Police Court of Lowell had jurisdiction and authority to sentence the plaintiff for the offence for eight as well as for six months. The defendant was the keeper of the workhouse. There was evidence that, when Cawley delivered the plaintiff at the office of the workhouse, he stated to a young man in the defendant's presence that the plaintiff's sentence was for six months, but there was no evidence that the defendant heard it. There was also evidence that the plaintiff's clothes were put away and checked with a tag bearing the words, "Sept. 9, '93, Peter Martin, Prisoner, 6 months"; but there was no evidence that the defendant knew this. The defendant, honestly relying upon the attested copy of the mittimus, kept the plaintiff imprisoned in the workhouse for two months after the real term of six months had expired, which was the tort complained of. The plaintiff had claimed his release at the end of the term of six months, and the defendant had refused it, saying that the plaintiff was sentenced to eight months' imprisonment, and showing the plaintiff the attested copy; after which neither the plaintiff nor the defendant made any further effort to ascertain whether this attested copy was a correct copy of the original mittimus, or whether the plaintiff's sentence was really for six or for eight months. The defendant offered the attested copy in evidence as a justification, and the same was admitted, against the plaintiff's objection. The judge submitted the amount of the plaintiff's damages to the jury, who assessed the same in the sum of one hundred and twenty-nine dollars. Thereupon the judge ordered a verdict for the defendant.

D. B. O'Connell, for the plaintiff.

F. W. Qua, for the defendant.

ALLEN, J. By Pub. Sts. c. 215, § 28, it was made the official duty of

the officer who served the mittimus to leave with the keeper of the prison an attested copy thereof with his return thereon, and this is a sufficient warrant to the keeper for the detention of the party committed. . The keeper may and must assume the attested copy to be correct, unless there is something to show the contrary. An inaccurate copy may be voidable, but if properly attested it will warrant the keeper in detaining the person committed, at least until he knows or has reason to believe that there is an error. In the present case, the plaintiff should have taken steps to have the mistake corrected, or at any rate should have informed the defendant that there was a mistake. But he did neither. The defendant had no reason to think the copy erroneous; and there was no negligence on his part in failing to ascertain the existence of the error. Without going further than the facts of the present case, we think the defendant was justified in assuming that the copy was correct, and that he is not liable to the plaintiff in damages. See Wilmarth v. Burt [supra, No. 1038]. Judgment for the defendant.

ACTION in the municipal court of Ortonville to recover $65, the value of a wagon owned by plaintiff alleged to have been wrongfully converted by defendant. Judgment was rendered in favor of defendant, and plaintiff appealed to the district court for Big Stone county on questions of law alone. The trial court, C. L. BROWN, J., ordered that the judgment of the municipal court be reversed, and that plaintiff recover the sum prayed for in his complaint. From the judgment entered pursuant to such order, defendant appealed. Affirmed.

This action was brought to recover the value of a lumber wagon which plaintiff alleges the defendant wrongfully took and converted. The defendant admitted the taking, but in justification of doing so he alleges: That he then was the duly-elected and acting sheriff of Big Stone county in this State. That on April 13, 1897, an execution was issued out of the District Court in and for said county, under the seal of said court, and dated upon that day, on a judgment in favor of John Maher and J. W. Grant, and against John Johnson and his sureties, C. A. Dahlhjelm and N. E. Johnson, for the sum of $11.60, additional costs incurred in said action, commanding defendant to satisfy the said judgment out of the personal property of the judgment debtor within said Big Stone county, and, if sufficient personal property could not be found, then out of the real estate, etc.; which execution was duly endorsed by the attorney for said judgment creditors named therein, as required by law, which execution was delivered to this