Gilbert v. Rider

1 Kirby 180

Opinions

Law, C. J., Sherman, PitkiN, and Ellsworth, JJ.,

agreed — That a justice of the peace has, by law, a right to issue his execution through the state, if he finds it necessary to give it effect; and it is at his discretion. Should it appear that an execution was directed to a distant officer, merely to vex and oppress the debtor, it might subject the authority who issued it to damages; but the officer is bound by his precept, unless it be void on the face of it; — he cannot look to the circumstances which induced the direction. i>

As to the property tendered ■ — --it was not apparently sufficient to discharge the debt and incidental cost; the officer was not, therefore, bound to receive it. It is undoubtedly the duty of an officer, after having taken the body, to allow the debtor a reasonable opportunity to produce estate, which appears to have been done in the present case.

As to tlie road — tbe officer is not always bound to take tbe most direct road to prison; be may apprehend a rescue, and it is at bis discretion wbat route to take, so tbat be does not go a great way round about, in order to harass and oppress tbe debtor. Here tbe deviation was small (if any) and reasonably accounted for.