Hooker v. Smith

*154 The opinion of the court was delivered by Hall, J.

It is objected in behalf of the defendants, that the replication prays judgment upon the second count, only, of the declaration, whereas the plea, to which it applies, is an answer to both the second and third counts j and that the replication is therefore bad. This defect is found in the replication; but the replication in every other respect covers both counts; and it is laid down in 1 Chit. PI. 643, that a defective conclusion of a replication can only be reached by special demurrer. This is believed to be the acknowledged rule; and as the demurrer in this case is general, the objection is deemed not to be well taken.

An objection was also made in the argument to a supposed defect in the declaration ; but as that defect is found to exist only in the first count, to which the pleadings now before the court do not apply, it is unnecessary to notice it farther.

The principal question in the case arises upon the legal effect of the facts set forth in the pleadings. It has been held by this court, in the case of State v. Hooker, 17 Vt. 658 , upon an indictment founded on the same transaction detailed in the pleadings, that the breaking open of the door of the dwelling house by the sheriff, to serve the process, was not only illegal, but. that, after the breaking into the house, the defendant in the execution was justified in forcibly resisting the officer in executing the process. It is conceded in the argument, that the sheriff himself could not justify under the pleadings in the case; but it is insisted, that his assistants stand in a different position, that they were obliged by law, when called upon by the sheriff to give him their aid,, and that, having acted by his command, they are justified, though he might not be.

It is doubtless true, that a sheriff may be held guilty of a trespass, while those who were acting by his command might be thereby excused. If the act itself be in the first instance lawful, but becomes a trespass ah initio by some subsequent misconduct of the sheriff, as for not returning the writ, it would be obviously unjust to hold the assistants liable for such constructive trespass. And there are probably other cases, where the command of the sheriff would be a defence to those aiding him, though the sheriff himself might not be justified. The sheriff, for the suppression of riots and the preservation of the peace, and for apprehending a person for violating the *155 peace, or for any other criminal matter, or cause, is specially impowered by statute to require suitable aid and assistance. Rev. St., c. 11, <§§ 10, 11; c. 98, §§ 2-9. These statutes seem tobe only in affirmance of the colnmon law, by which the sheriff might raise the posse comitatus, or, in other words, such a number of the men of the county as were necessary for his assistance in the execution of the King’s writs, quelling of riots, apprehending traitors, robbers, &c.; Bac. Ab., Sheriff N 2. '

It is said by a very accurate elementary writer, that, in the arrest of a party for crime, those who obey the sheriff’s command will be thereby justified, though the sheriff himself might be acting without authority. Ham. N. P. 63-65. If those who are called to his aid are bound to obey, without inquiring into the sheriffs authority, such doctrine would seem reasonable; and perhaps the same rule would apply here, where the case arises under the provisions of the statute which have been mentioned.

The statute of this state also contains a provision applicable to the service of civil process. Where great opposition is made*to the service of any lawful writ, or precept, the sheriff is authorized, by and with the advice of two justices of the peace, to raise all or any part of the militia of the county to aid and assist him ; and in such case the officers and soldiers of the militia are made liable to a fine, for neglecting to obey the call of the sheriff. Rev. St., c. 11, §§ 12-14. It would seem to be a harsh proceeding, to hold that the soldiers, in such case, should be made liable as principals in a trespass, if the doings of the sheriff should be held unlawful. Probably the command of the sheriff would be their sufficient justification.

These are believed to be all the statutory provisions applicable to persons acting in aid of a sheriff; and it is observable, that none of them reach the case of these defendants. The sheriff, in this case, was not acting in his character of general conservator of the peace, or in the arrest of a party for crime, where special authority is given him to command assistance, — nor were the defendants aiding him as a part of the militia of the county ; but they were merely called individually to his aid, in the service of a writ of execution, — a civil process. It appears, also, that the defendants knew, at the time, that the sheriff was acting under a civil process. In their plea in bar they describe it particularly, and say that the sheriff requested *156 them to assist him in executing it; and in the replication, the truth of which is admitted by the demurrer, it is stated, that the defendants entered the plaintiff’s dwelling house, by forcibly breaking open the outer door, for the purpose and with the intent to execute therein the writ of execution by arresting Ms body. With the full knowledge that the sheriff was about to do an illegal act, they united with him in committing it; and we think they must share with him in its consequences. A contrary doctrine would enable a sheriff, under color of a civil process, to add to his own physical power, to accomplish an illegal object, the power of a lawless, but wholly irresponsible, mob.

, The doctrine now held, that, where the original act of the officer in the service of civil process is unlawful, those aiding him in the performance of it will be trespassers, though they act by his command, is fully sustained by the cases of Oystead v. Shed, 12 Mass. 511 , and Elder v. Morrison, 10 Wend, 128, which were cited in tho argument.

The judgment of the county court is therefore affirmed.