Governor ex rel. Gill v. Stribling

2 Blackf. 24, 1826 Ind. LEXIS 16

• Court: Indiana Supreme Court
• Decided: November 10, 1826
• Status: Published

Opinion

Blackford, J.

The facts stated in the declaration, to make out a breach of the condition, are, that Gill took out and delivered to Stribling, as sheriff, a capias ad respondendum against Taylor & Searles, requiring bail; that he intended by Taylor & Searles, David S. Taylor and David Searles; that the sheriff arrested David S. Taylor, but did not take bail, and voluntarily permitted him to escape.

These facts constitute no breach of the condition of thebond. Upon a writ against Taylor, without any other description, the sheriff was not bound to arrest David S. Taylor, nor, after arresting him, was he bound to detain him. It was impossible for the sheriff, from such an imperfect description, to know that David S, Taylor was intended.

The record, therefore, shows that the plaintiff had no cause of action; and he has no right to complain of the judgment against him

(1).

Per Curiam.—The

judgment is affirmed with costs.

The party whom the plaintiff intended to arrest must be correctly described in the process; if he bo not, the processes no justification for the arrest of such person. Thus, to trespass for false imprisonment brought by Jl. the defendant pleaded that B. sued out a latitat against the plaintiff «/?., therein called by the name of C., directed to the sheriff, &c. authorising him to arrest C.; that the sheriff directed his warrant to the defendant, commanding him to take the said Jl. therein called by the name of C.; averment, that Jl. and C. named in the writ and warrant are one and the same person. This plea,on general demurrer, was held tobe bad. Shadgett v. Clipson, 8 East, 328. So, to trespass for taking JlSs goods, the officer pleaded that he took them under a distringas against B. meaning the said'./#., to compel an appearance; averring tha¿ Jl. and B. were the same person. (Jl. had not appeared in the original action.) ''I2eld¿ on demurrer, that the plea was bad. Cole v. Hindson, 6 T. R. 234. So, where Daniel S. Griswold was arrested on process of attachment issued out of the equity side of the Circuit Court of the United States against Samuel S. Griswold, it was held that an action of false imprisonment lay by Daniel S. Griswold against the marshal, his deputy, and the solicitor concerned in the arrest; and that this was so, though Daniel S. Griswold was the peison intended. Griswold v. Sedgwick, 6 Cowen, 456. S. C. 1 Wend. 126.