Hill v. Lowry

1 Tapp. Rep. 181

• Court: Jefferson County Court of Common Pleas
• Decided: September 15, 1817
• Status: Published

Opinion

This cause having been submitted at the last term, the opinion of ■the court was now delivered by the

President.

In the statement of facts, and the papers accompanying it submitted to the court, there is not sufficient to maintain the first issue on the part of the plaintiff. The statement admits an escape, but whether the escape was voluntary or negligent, does not appear; if it was the latter, recaption on fresh pursuit, before action brought, is a bar. It seems to me, that it would not be a fair and reasonable construction of it, to conclude that a voluntary escape is admitted, but that the escape was a negligent one, the action for which is barred by the matters set forth in the defendant’s plea, and the facts agreed.

On the second count, for not arresting Eiddle, it seems that the defendant is liable. The statement of facts, and the sheriff’s return on the writ, prove that Eiddle was within the county, and might have been taken on the capias. “ Sheriff may appoint a special bailiff to execute a writ upon any certain occasion, he is answerable for their acts — one arrested by such bailiff, is in the sheriff’s custody,” 4th Bac. Ab., 441. Here was an attempt to arrest, an opportunity to arrest, which failed; 1st, because the bailiff was not lawfully authorised; and 2d, because he did not proceed correctly. He was not lawfully authorised to serve the writ. The sheriff cannot make a bailiff, or deputy, but by warrant under his hand and seal. The endorsement on the back of the writ, “Thomas Maxwell is hereby authorised to serve this writ. Witness my hand, May bth, 1815. Wm. Lowry, shff. — is not a legal warrant. But if the appointment of the bailiff had been proper and legal, his proceedings under it, could not be justified; no man is bound to take notice of, or obey, the authority of a special bailiff, until it is shewn to him. On examining the proceeding, in the case of Eiddle vs. Lowry and Hill, August term, 1815, it appears that a motion was made for the discharge of Eiddle, “because the process of the court had been abused.” From the affidavit filed, it appeared, that Maxwell went to Eiddle’s house, and was in the room with Eiddle, that he laid his hand on Eiddle’s shoulder, and told him that he was a prisoner; Eiddle asked him to shew by what authority he arrested him; Maxwell replied that he had sufficient authority, but refused to sheio it. Eiddle then broke away from him. Upon this, the sheriff returned an escape and offered a reward for the apprehension of Eiddle, who had gone into Yirginia. Some men took the sheriff’s advertisement, and went into Yirginia, took Eiddle, bound him and brought him to Steubenville, to the sheriff: the sheriff put him in jail, from he was released on giving bail for Ms appearance. The court decided, that the arrest of Eiddle was illegal, an(j or¿iered the bail bond to be given up. It appears to me? oourj¡ decided correctly, in adjudging the arrest to be illegal and void, as then it was in the power of the sheriff to arrest Eiddle, and he neglected doing it in a legal and proper manner, so as that the plaintiff’s debt might be secured. I consider him as liable in damages on the second count.

The amount of damages is discretionary, and should depend on the particular circumstances of 'the ease. If, by the gross neglect of the officer, the plaintiff’s remedy against his debtor is gone, he should be fully indemnified. If his remedy is not impaired as against his debtor, or it would not have been certain on account of insolvency, a less sum, in damages, should be given. In this case it seems, that the plaintiff has lost his remedy against Eiddle, but Eiddle had no real estate, and not much personal properly, and it is doubtful whether a judgment against him could have been collected; beside, the neglect of the officer appears to have been inadvertent; the court, therefore, assess the plaintiffs damages at seventy dollars.