Tubbs v. Tukey

Metcalf, J.

The court are of opinion that the defendants have not made out a justification of the arrest and imprisonment of the plaintiff. The warrant commanded the officer, to whom it was directed, to take and bring before the police court the body of the plaintiff, to answer to the commonwealth, on a complaint against him, made on oath before that court, for selling liquor. And the officer’s duty was, (even if it be admitted that he was not required to make a written return,) at least to do what was commanded by the warrant; namely, to carry the plaintiff before the police court. If he had any legal reason, as he might have had, for not doing what he was commanded to do, it was necessary to his justification that he should show such reason in evidence. If he had a legal right to keep the plaintiff in jail, during Sunday and Sunday night, yet he could be justified only by the necessity of the case, and so long only as that necessity existed. He was therefore bound to take the plaintiff, on Monday morning, before the police court, or show some legal reason for not so doing. He omitted to do this, and has shown no legal reason for such omission. He arrested and imprisoned the plaintiff, and there his doings ended.

It is an established rule of law, in civil suits, that when an officer justifies under mesne process, which is returnable, he must show that he has done all that it was his duty to do ; and that he is a trespasser, if he do not show that he returned the process. Dalt. Sheriff, c. 38; Middleton v. Price, 1 Wils. 17; 5 Dane Ab. 556, 616; 5 Barn. & Cres. 488, 489. And though the plaintiff’s counsel, cited no decision. *441 and though we have found none, in which this doctrine has been applied to the case of a warrant in a criminal process, yet we are of opinion that the doctrine is applicable to such a case. The principle is essential to the safety of the citizen, and to prevent the processes of the law and the action of its officers from being employed for purposes of oppression.

It was suggested by the counsel for the defendants, that as the warrant, on which the plaintiff was arrested, contained no command to the officer to make a return thereof, the warrant was not a returnable process; and therefore that the rule, which prevails in civil process which is returnable, should not be applied in the present case. And we find, on inspecting the warrant,, that it did not direct the officer to make a return. We also find the like omission in the forms of warrants set forth in Davis’s Justice, and in several of the English books of forms. But Mr. Dane, speaking of the form of a warrant, says, that after the command to take and safely keep the person named therein, the officer is “ charged to make return of his warrant and doings.” 7 Dane Ab. 250. And such, in our opinion, ought to be the command of the warrant. The omission of this, command, however, does not excuse the officer for not making a return.

It is said in Burn’s, Dickinson’s, and Williams’s Justice, when treating of the subject of arrest, that a constable is not obliged to return the warrant, but only to make return of what he has done on it. The same is found in other English books ; and the case of Regina v. Wyatt, 2 Ld Raym. 1196, is uniformly cited in support of the position. In that case, the defendant was indicted for refusing to return a warrant of distress, issued by two justices, against one Nash, upon his conviction, before them, of the offence of aiding and assisting in the killing of deer in a park. The indictment alleged that the warrant was delivered to the defendant, a constable, commanding him to levy a certain sum of the goods and chattels of Nash, for the aforesaid offence, and to make return of the warrant to said justices, or one of them ; *442 that the defendant levied the money of the goods of Nash, but illicitly, obstinately and contemptuously refused to make return of the warrant. The defendant was found guilty by the jury, and three arguments were had, on the record, before the court of king’s bench. Holt, C. J., held the indictment to be bad; but the other judges gave judgment against the defendant. At the close of the case, it is said that at the former arguments, “the chief justice and Powell, J., held, that the constable was not obliged to return the warrant itself to the justice, but might keep that for his own justification, in case he should be questioned for what he had done ; but only to give him an account what he had done upon it.”

It is very clear, upon examining that case, that it is no authority for the position that a constable is not obliged to return a warrant issued for the arrest of a person on a criminal charge, and his doings on the warrant. Admitting that Holt, C. J., and Powell, J., were right in their first impressions, (which, however, the final judgment seems to negative,) yet the process in that case was a warrant of distress, in the nature of an execution in a civil suit. It was final process, and not returnable mesne process. And it is well settled, that when an officer is sued as a trespasser, for levying a fieri facias, he need not show a return thereof, in order to justify the levy. Hoe’s case, 5 Co. 90; Rowland v. Veale, Cowp. 20; Cheasley v. Barnes, 10 East, 73; 2 Greenl. on Ev. § 597.

Exceptions overruled.