Adams v. Freeman — 9 Johns. 117

Majority

p. 117

Adams against Freeman.

NEW YORK.

May, 1812

Headnote

a submission eo™'t, A. sued out an attach* merit against fonníng°tPthe *Xie\r\be 29th of May, which was, OH that day, desheriff, “who the^istlfay and the par-at court, on ¡lía the cause ^néxtterin0 in an action fikeimjnSm by"¿bagamst A., it was held, that it was lawful for the sheriff to arrest the party, on the return day of the attachment, and no direction having been given to him by A. to make the arrest, afterwards, the trespass, if any, was committed by the sheriff, not by A

A party who sues out and delivers to the sheriff a valid process, is not responsible for any irregularity of the sheriff in executing the process, unless it appear, affirmatively, that he acted by the orders of the party, when he committed the trespass. The party is answerable only for the validity of the process, and for good faith in suing it out.

Whether an assent to the trespass, afterwards, by the party, will make him a trespasser ab initio, dubitativo. But, if so, such assent must be clear and explicit, and founded on full knowledge of tlie trespass.

THIS was an action of trespass and false imprisonment. The defendant pleaded, 1. Not guilty. 2. That on the 11th May, 1809, the parties submitted all differences to arbitrators, (see ante, 1 p6 li50) so that the award should be made on or before the 1st July, 1809. The time was enlarged to the 1st August, and, before that time, an award was made, to wit, on the 15th July. The bonds contained an agreement, that the submission should be x f nrxji -rv i made a rule of court, pursuant to the act ot 28th February, 1791, of the court of common pleas of Washington county. The plaintiff having made default in performing the award, the defendant filed the bond, award, &c. and on the 29th December, 1809, caused the submission to be made a rule of court. After service of a copy of the rule, the plaintiff having neglected to perform the award, the defendant, on the 28th May, 1810, obtained a rule for an attachment against the plaintiff. An attachment was accordingly issued, tested in March, 1810, and returnable the last Tices day of May, (the 29tb,) which was delivered to the sheriff on

p. 118

the 29th May, who, afterwards, and before the return thereof, arrested the plaintiff, to wit, on the 31st May, and kept him in custody until the 1st June, when the court postponed the cause the last Tuesday in August, 1810; and the sheriff again had the plaintiff in custody, before the court, on that day, and detained him, until he was discharged from the attachment, by order of the court. The plaintiff demurred to this plea, and the defendant joined in the demurrer.

Weston and Z. R. Shepherd argued in support of the demurrer,

Skinner and Foot, contra.

The plaintiff was attached and imprisoned under the statute, (Lams, vol. 1. 156.) for refusing or neglecting to perform the award; and the statute makes the party, in such case, subject to all the penalties of contemning a rule of court.” The irregularity contended for on the part of the plaintiff is, that he was arrested on the attachment, on the 31st of May, being after the return day. The attachment was returnable on the 29th of May,"and on that day, the defendant avers that he delivered the process to the sheriff. It was lawful for the sheriff to have arrested the plaintiff on the return day, and it does not appear that the defendant gave any direction to have him arrested afterwards. The trespass (if any) was, therefore, committed by the sheriff, and not by the defendant; and it does not appear that the defendant even knew, at the time the plaintiff was detained a prisoner, that he had been arrested after the return day. There is no law or justice, that a party who sues out and delivers to the sheriff a valid process, should be responsible for the irregularity of the sheriff in executing the process, unless it appear, affirmatively, that the sheriff acted under his orders, when he committed the trespass. The pariy who sues out process from a competent court, is responsible only for the validity of the process, and for good faith in suing it out. He is not to answer for the acts of the officer, beyond the authority of the precept, unless he makes those acts his own. The doctrine of a ratification of a trespass committed without the authority of the party ratifying, does not seem to apply. It may be questionable, whether an assent, afterwards, to a trespass, will make the party assenting a trespasser ab initio, in cases of mere personal tort. (Bishop v. Viscountess

p. 119

Montague, Cro. Eliz 824.) But, at any rate, the assent must be clear and explicit, and. founded on full knowledge of the previous trespass. There is no evidence here of any such assent, and the plaintiff should have replied and averred that assent, if he would avoid the plea. The appearance of the plaintiff in court, on the 1st of June, was no evidence that he was arrested, after the return day; and if the defendant had been informed of it, he had a right to consider the plaintiff as waiving the objection to the time of the arrest, since he submitted to it, by making no application to the court to be discharged, and by acquiescing in a continuation of the imprisonment, or effect of the arrest, until the subsequent term of the court of common pleas. The plea is, therefore, a sufficient bar to the action; and without touching any other question that was raised, the defendant is entitled to judgment.

Judgment for the defendant.