Sherburn v. Beattie

16 N.H. 437

• Court: Superior Court of New Hampshire
• Decided: December 15, 1844
• Status: Published

Opinion

Woods, J.

It is not necessary to determine the general question, whether when after the escape of a debtor in execution, the sheriff has under the circumstances of the case, the right to retake the prisoner within the State in which the arrest' took place, on fresh suit, the same authority exists to pursue him. beyond the jurisdiction and to retake him in another State.

In Bromley v. Hutchins, 8 Vt. 194, it was held, that such authority did not exist; and it is said, that that decision has been confirmed by a more recent one in that State. Such an act of the sheriff was held to be unwarranted, and to constitute a trespass. It would seem therefore to be the impression of the court, that the right of recapture on civil process, does not exist beyond the limits of the State in which the arrest is made.

If the precise question were presented here, we think that we should pause before deciding that a citizen who had been arrested on civil process in Louisiana, or even in the neighboring State of Vermont, should at the will and pleasure of the officer arresting him, in the event he should have escaped into this State, be retaken and conveyed into the State from which he had escaped.

Even criminal fugitives from justice are not removed from the State without a hearing ; and there is no imperious necessity for extending the right of recapture in a civil case, beyond the limits of the State in which the arrest is made. The courts of every State are open for the enforcement of civil rights, and the remedy may be pursued in the State where the individual may be found to reside.

It is not necessary however to give an opinion upon the general question of a right to recapture at all, since the circumstances of this case furnish other grounds which are decisive, and to which we may limit our inquiries.

The facts here show a voluntary escape in the State of Vermont. At Mclndoe’s Falls, by permission of the officer Beattie, Sherburn the plaintiff, went upon a raft which was at the time in fact in New-Hampshire, and beyond the reach and control of Beattie. The transaction was clearly a voluntary escape.

Now it is well settled, that after a voluntary escape of a prisoner on execution, the officer who has permitted it, has no authority to retake the debtor, even within the government in which the escape has taken place. Certainly not without permission of the creditor. The authorities cited by the plaintiff’s counsel fully sustain this position. Appleby v. Clark, 10 Mass. 59; Brown v. Getchell, 11 do. 11; Commonwealth v. Drew, 4 do. 391; Pitcher v. Bailey, 8 East. 171; Atkinson v. Matteson, 2 T. R. 176.

The same principle is recognized in Langdon v. Hathaway, 1 N. H. 367 ; Cheever v. Mirrick, 2 N. H. 376.

If the officer has no authority to retake the prisoner in Vermont, it requires neither argument nor authority to show that he could not lawfully do it in this State.

There must therefore be

Judgment on the verdict.