Watson v. Watson

9 Conn. 148

• Court: Supreme Court of Connecticut
• Decided: June 15, 1832
• Status: Published

Opinions

Hosmer Ch. J.

To simplify the case as ?nuch as possible, I will first put out of consideration, the three last counts in the writ of replevin. These are founded, not on an impounding or distress, but on a caption and detention only. In Wcstmin-stcr-Jlnll, and in some of the contiguous slates, an action of replevin lies for any tortious or unlawful taking of goods and chattels, and is not alone restricted to cases of distress. 2 Phill. Ecid. el in nods. But in this state, no action of replev-in has ever been sustained on tins ground. A negative usage of this kind, so far as our legal muniments reach, and beyond the memory of man, is decisive to show, that no such suit is sustainable. 2 Swift’s Syst. 89. 1 Swift’s Dig. 523. Numerous must have been the instances, in which an action of this description would have been brought, were it not for the universal conviction, that it could not be maintained. The inference from the usage just mentioned receives strong confir-raation from the acts authorising writs of replevin. Stat. 382. Express authority is there given for the replevying of cattle and other goods and chattels, when impounded and; distrained ; and the form of process, and the bond to be taken upon it, are particularly prescribed ; but here the law has stopped. Stat. 244. 382. By fair implication, this denotes, that a replevin is not allowable in any other case. Had it been authorised, the legislature, according to the genius of our laws, would have directed, what bond should be taken, and in what manner ; a proceeding beyond the competency of any judge or justice to settle, in this new and unprecedented action.

The first count in the writ of replevin is founded on an impounding and distress of the horse before-mentioned, and presents the only material controversy in the case.

The objections made to the defendants’ plea, embrace these positions ; that the process of replevin was void, by reason of its having been irregularly issued ; and that Phelps, the officer, knowing that the horse before-mentioned was not distrain-ed or impounded, a fact likewise known to John B. Watson, the plaintiff in the replevin, ought not to have obeyed the command of the writ. These objections I will meet, by several distinct propositions.

1. My first proposition is, that justice Niles had right to issue the writ in question. The persons, process and subject matter were clearly within his cognisance, by the explicit enactment of the statute authorising writs of replevin. Stat. 382. s. 1,3. Vid. Marshalsea case, 10 Co. 78. Grumon v. Raymond, 1 Conn. Rep■ 40. Slocum v. Wheeler & ah 1 Conn. Rep. 429.

2. The writ of replevin was regularly issued. It is literally in the language prescribed by the statute ; and bond with surety was taken in the words of the law. Stat. 244, 5. As several specific objections were made, by the plaintiff’s counsel, to this point, it will conduce to perspecuity to consider them distinctly.

It was said, that the bond taken ought to be certified particularly and fully, on the writ in question.

I do not admit the position advanced. The law only requires, that bond with sufficient surety shall be taken. Slat. 382. I grant, however, that the fact should appear on the process, that a legal bond was given : and it does appear, in the precise manner, which the legislature, in their prescribed

form, have required. The justice certified on the face of the writ, that “ the said John B. Watson, has given bond accord-. ing to law,” and thus literally complied with the statute provision on this subject, as well as with the uniform practice in such cases. This is all that the ancient practice required in any case, the justice expressing the bond at full length in a private book kept for that purpose ; although in modern times, it has been customary to enter on the writ the amount of the bond taken, and the names of the persons giving it. This furnishes, at all times, a memorandum, which may be expounded and put into legal form, whenever it shall become necessary. [This fact I state on my own responsibility, and not from authority imparted by the court.]

It was next objected, that the justice had no legal right, to issue a replevin, until it is made to appear, that property was impounded or distrained.

It ; . this '•*⅛<⅜⅛n, ú was intended, that the justice is bound to enmure on this =rub»r-ct. a,, i to ascertain the fact, it undoubtedly ⅛ erroneous. N ore’ nruy enquiry or investigation is demanded. Urn form of rex 3vin prescribed by the legislature, demonstra ⅛ os the justice. It commands that the good- t ep. are impounded or distrained “as it is m J / .hen ,y r . ¿ that the writ of replevin is de-mandadle if ft ¡si , ' , • jmplaint and request of the party clair’¡eg to hi- ied t. h,as is well known, is the invariable practice. If however, th1 oh* ■«*’ Un meant only to question the stiffi-cien. * t le-avei ’ ic.¡í > * me writ of replevin, and to demand tha. w should be moré; precise and particular, it is a conclusive 1. ⅛'-; <h-y fa all the precision and particularity, which 'me ra. i.' sonh',1 by the legislature requires. It ;’⅛ b. n : -lies ..! j- ' ted, that the horse in question was impk-viiOk i; ¡ j.*r> that he belonged to Ralph Watson, and -oc,f ⅛ p J <• »k wh i net • isarib, afk ■ the r>-l tion.mthe u. quii {, discussion. '* 'h.ai the replevin v a • duly and regularly issued, I think, ther" exists no'reasonab'--ooubt. the conduct of Phelps, the de-19 opplevin. • iti '■ i. *,, did this-appear ? The only answer '«1 ot the trial of the case, many months ; * tjrnii-d. The irrelevancy of the objec-1 aiip ■ >> the process, is too apparent to re-

^enc^ant* The writ was put into his hands, as an officer, tb ; and he accordingly served the same, by replevying the before mentioned horse. The first objection to this act of his, is founded on a fact, proved at the trial of the cause, to wit, that he knew the said horse had not been distrained or impounded. From this the plaintiff infers, that he ought not to have served the replevin ; and that in thus doing, he became a trespasser. I reply to this objection, that the defendant, Phelpsj being a legal officer, it became his duty, regardless of any knowledge, or supposed knowledge, of his own, that there existed no cause of action, to serve the writ committed, to him* promptly, unhesitatingly, and without - .of above

mentioned cause. This I consider « - w *' ■ render the proposition self-evident. ,» lithe writ, constitute his justification ; k ■ -ra eo obey its mandate ; nor was it any v. >'.( ;',h mine, whether the allegations contain P l. hi? true. The proof of these positions „--¾⅛⅛, Í iJjSjj|SfI ⅜⅜⅜|⅝|¾ from his relative condition. He wa >< , whose sole duty it is to execute, and ;;c ' I or sufficiency, of the processes co He has no portion of judicial aüthorN quiry into the causes of action, <••• ::iaiu larations put into his hands f precepts committed to him, to b. : or. and third part of his duty ; and Cvac , ;* Lpetent authority and with, legal their face, he is justified for ever ■of their command. “ It is incoi yon, in Belli v. Broadhent & ux. 1 that a person shall be considera the process of the court.” In ' Conn- Rep. 40. it is said, by Ch not appear on the face of the wí officer’s duty to obey. Milles v The ground of these principles gistrate is confided the issuing o other executive officers, is conii It is easy to see what widc-sprc permitting an executive officer ' edge, that he ought not to serve Ills hands for service ; and to coico "r \v*>- • ,:pS ÍO ; 3 of 1 to er-i v ere 1 rx::J}V o‘dwr, i , ch o. t • g.U»,,' ⅜ ’ - ‘ ri' ^ JC< - Mg it

from such doctrine, that is. that his return of the fact would ... . . be ajustification for ms omission, in short, the executive cer must do his duly, which is to obey all legal writs ; and must not arrogate to himself the right of disobeying the para* mount commands of those, to whose mandates he by law is subjected.

It was said, in the argument of this case, that no difference exists, as to the proceedings of an officer, if the plaintiff has no property in the goods to be replevied, between the taking of property on a replevin, and the taking of the goods of A., upon a process commanding him to take the goods of B.; that is, that the caption in both cases is equally a trespass. No remark can be more unfounded, for the difference is immense and distinctly marked- In the case of the replevin, the officer does what by legal authority he is commanded to do; and in the other case, he does what he was not commanded to do. In re-plevin, the property is identified and described, and the command is, Take this specific property. In the case of a process commanding the taking of the goods of A., without any identification or description, the command is, Take the goods of A., if any such there are, but not the goods of any other person. From the nature of the case last put, the officer must act on his own. enquiry, aud is bound to all the responsibility of his action. Unless he acts in this manner, ho cannot act at all.

It is found to be a fact, that the horse in question was not distrained or impounded ; and that it was known to the defendant Phelps. I have already shown, that this can make no difference in the case. The officer was bound to replevy the horse, by the imperative command of a magistrate ; and whatever was his knowledge on the subject, he could never return this as a justification, for his neglect to obey the mandate of the writ. It would be extraordinary to hold, that the officer must serve the replevin, or be responsible to the plaintiff in that instrument; and if he does serve it, that he is answerable in damages to the defendant. No legal officer is placed in this predicament; — -a predicament in which the argujnent in this case, if admitted, would place him.

The counsel for the plaintiff have agreed, that the defendant, Phelps, found the horse not distrained and at large in the plaintiff’s home lot; and that, for this reason, he ought not to have executed Ms writ. This, in another shape, is one effort to set up the knowledge of the officer, against the command of his precept, and already has received an answer. In another view of the subject, the observation is without force. The place in which the horse was found,, was not incompatible with his having been distrained.

On the whole, I have no doubt, that it was the duty of the defendant Phelps to obey the mandate of justice Niles, and to replevy the horse ; and that the facts appearing in the case constitute- a full justification in his favour, against the plaintiff’s action.

: The question still remains, is the defendant, John B. Watson, justified, by the defence he has set up ? The horse, it is found, was not his property; and he knew, likewise, that it had not been distrained or impounded. In other words, he knew, that he had no cause of action, and no right to replevy. It follows, as an undoubted consequence, that he has perpe- i trated a malicious wrong, through the medium of legal process. That this is an injury done to the plaintiff is unquestionable; but the enquiry is, does it in law constitute a trespass ? Most clearly it does not. Chitty, in his treatise, on Pleading, truly states, (p. 187.) that whenever an injury to a person is effected, by regular process of a court of competent jurisdiction, though maliciously adopted, case is the proper remedy, and trespass is not sustainable; as for example,Mor a malicious arrest, or a malicious prosecution. Again, he says, (p. 188.) no person who acts upon a regular writ or warrant, can be liable to the action of trespass, however malicious his cbnduct, but case for the malicious motive and proceeding, is the only form of action. These principles are supported by numerous cases. Belh v. Broadbent & ux. 3 Term Rep. 185. Root v. Cooper & al. 1 Term Rep. 535. cited. S. C. reported 3 Esp. Rep. 135. Ratcliffe v. Burton, 3 Bos. ⅜ Pull. 223. Stone-house v. Elliott, 6 Term Rep. 315. 3 Stark. Ev. 1446. and cases cited ibid. The same point was determined, in a similar manner, by this Court, in Luddinglon v. Peck, 2 Conn. Rep. 700. It results, that the defence pleaded is, in this action, equally available to Watson as to Phelps.

The charge of the Judge, for the aforesaid reasons, was incorrect; and a new trial must be advised.

Peteks, Williams and Bissell, Js. were,of the same opin-