Avery v. Seely

- The opinion of the Court was delivered by Kennedy, J. Although it be true, that generally the command to the sheriff, in the writ of capias ad satisfaciendum, issued upon a judgment, is, that he take the body of the defendant, so that he have him before the Judges of the court whence the writ issued, yet this latter part of the mandate is never, in fact, complied with; nor is it requisite that it should be, as no further proceeding is to be had thereon against the defendant, nor action of the court upon the writ; for, by the execution of it, the plaintiff has obtained the effect of his suit. Hoe’s Case, (5 Co. 90). And for this reason it may be, that such writ, when sued out upon a statute-merchant, simply requires the sheriff to take the body of the debtor, and cause him to be kept safely in prison, until he shall fully satisfy the debt; Fitz. JV. B. 130: or as Dalton has it, until he hath agreed for, or fully satisfied the debt; Balt. Sheriff 120. And this, in short, would seem to be the full extent of the duty of the sheriff upon any writ of capias ad satisfaciendum, after having arrested the party named in it. And it is all that the plaintiff in the writ or the court can require of him; for the body of the debtor is not taken by virtue thereof in satisfaction of the debt, but merely as a pledge for the payment of it. Blumfield’s Case, (5 Co. 87); Balt. Sheriff 119. In all cases, however, the sheriff is required to make return of the writ, and what he has done on it, to the Judges of the court in this State whence it issued; but [497] the body of the defendant is never made to accompany such return. Nor does the law of this State seem to consider this at all necessary, if we may judge from the provision of the Act of Assembly allowing mileage to him in such case, which declares that “ on testatum writs and process, no mileage, but for that actually travelled by the sheriff, but to be allowed for transmission of such writs at the common rates of postage.” Thus showing, as I apprehend, that such writs, with the returns thereon made by the sheriff, may be transmitted, by means of the mail, to the Judges of the proper court. Neither is the return of a capias ad satisfaciendum necessary, in order to render the execution of it valid. For the sheriff without having made a return, of it, may even justify an arrest, made under it, in an action of trespass brought against him for having done so, by the party arrested. Cheasley v. Barnes, (10 East 73); Rowland v. Veale, (Cowp. 20); Hoe’s Case, (5 Co. 90); Doiley v. Jolliffe, (Lane 52). But I take it, notwithstanding the sheriff of Erie had, by virtue of the writ directed to him and put into his hands, full power to arrest Charles W. Seely, yet he had no authority, under it, to carry Seely to and confine him in the jail of Luzerne county, from the court of which the writ issued. I am inclined to believe, it would have been considered, in law, an escape suffered by him if he had done so. For the power of a sheriff does not extend beyond his county, and he shall only be adjudged a sheriff and officer within his county, and not elsewhere, (Plowd. 37), unless it be on a writ of habeas corpus, where he has power, by virtue thereof, to carry the prisoner through other counties, if requisite, in order to take him to the place mentioned in the writ; or in case of an escape, he may, on fresh pursuit, retake the prisoner in another county. Watson’s Sheriff 60. But if he, under a writ directed to him, make an arrest out of his county, he is a trespasser, and the arrest is void. Id. 60, 61; Hammond v. Taylor, (3 Barn. Sp Ald. 408). If, however, he makes the arrest in his own county, under a testatum capias ad satisfaciendum directed to him for that purpose, it is his duty to confine the defendant in the jail of his own county, where he may keep the jail himself, or appoint whom he pleases for that purpose, and not in the jail of the county from the court of which the writ issued, where he has no power or control whatever. The sheriff making the arrest, in such case, must be considered responsible for the safe keeping of the prisoner, as a pledge for the plaintiff’s debt; but it would be singular and unreasonable, that he should be made liable for an escape of the debtor from his confinement, suffered by the jailer of another county, where he has not the appointment of such jailer, or any control over him. So on the other hand, it would be equally unreasonable to make the sheriff of the county, whence the writ issued, liable, at all hazards, for the safe keeping of the party arrested, when he has no fees or compensation allowed to him, as is the case, for such risk. No [498] provision is made by law, authorizing the sheriff in such case, who has made the arrest, to deliver the party arrested over to the sheriff or the jailer of the county from which the writ issued. The responsibility of the sheriff making the arrest is very great under final process, such as the capias ad satisfaciendum in this case; for he is liable to the plaintiff for the amount of his debt, even if the defendant be rescued by a force that he cannot resist at the time. May v. Proby, (Cro. Jac. 419); Dalt. Sheriff 535; Watson’s Sheriff 74. The reason of this strict and severe accountability of the sheriff is, because under the statute of Westminster 2, he is bound to raise the posse comitatus, and may by this means prevent the rescue. But how far has he authority to call upon the posse comitatus to accompany and assist him in the execution of the writ? Certainly not beyond the limits of the county where the arrest has been made; and much less through half a dozen counties to the jail of one in the extreme end of the State. Then what is to become of the sheriff, under such a weight of responsibility, if he cannot take with him the posse comitatus out of his own county ? It is plain he may be ruined without the power or possibility of saving himself; and hence it cannot be, that it is his duty to go beyond the limits of that protection which the law has provided for him. And, indeed, it would be grievous, as also onerous, upon the citizens of the county in which the arrest is made in such case, if they were bound, at the call of the sheriff, to accompany him to the most remote corner of the State from their residence, without any compensation or allowance being made for it; yet certain it is, that they are obliged by law to attend him, when required, without any reward being prescribed for their doing so. Watson’s Sheriff 60. It would, therefore, be unjust to require either the sheriff or the citizens of his county, to go with the prisoner or defendant, in the testatum execution, to any other jail than that of their own county. And in accordance with the principles here advanced, it was held in Boothman v. The Earl of Surry, (2 Term Rep. 5), that the bailiff of a liberty, who had the return and execution of writs within his liberty, was liable to an action of debt for an escape, for having removed a prisoner, taken by him in execution, to the county jail situate out of his liberty, where he delivered him into the custody of the sheriff, instead of taking him to and confining him in his own jail. Now, if there be any difference, in principle, between the bailiff of a liberty and the sheriff of a county to whom a testatum capias ad satisfaciendum is directed, it is in favour of the bailiff; for the writ is not directed to him, but to the sheriff of the county in which the liberty is situate, and he acts under a mandate from the sheriff of such county. Having shown that the jail of Erie county was the place to which the sheriff ought to have committed Seely, upon his arresting him, had he not been discharged from his custody by the order of a Judge of the Court of Common Pleas of that county, it remains [499] for us to inquire and ascertain, whether the Court of Common Pleas of Erie county is not the proper court to which the petition for the benefit of the insolvent laws ought to have been presented by Seely, and whether that may not be construed to be the same court mentioned in the condition of the bond. A reference to l?he Act of Assembly of the 16th of June 1836, entitled “ An Act relating to insolvent debtors,” will settle the first of these questions. By the first section it is declared, that “ the several Courts of Common Pleas of this commonwealth shall have power to grant relief to insolvent debtors residing or being within this commonwealth.” The first clause of the second section then declares, that “ in the case of a person qrrested or detained by virtue of any process issued in any civil suit or proceeding, for the recovery of money or damages, or for nonperformance of any decree or sentence for the payment of money, without collusion with the plaintiff, the Court of Common Pleas of the county in which such debtor shall be arrested or detained, shall have power to grant relief, as aforesaid.” Now it is too plain to admit of a doubt, that it is the Court of Common Pleas of the county in which the debtor is arrested or detained, that is authorized by this Act to grant relief to him. Erie county, therefore, being the county in which Seely, the debtor in this case, was arrested and detained, the Court of Common Pleas of that county alone was authorized to grant the relief provided by the Act. The fourth section makes it lawful for any Judge of the Court of Common Pleas aforesaid, that is, of the county where the debtor is arrested or detained, or the prothonotary of such court, to make an order for his discharge, on his giving bond to the plaintiff in such suit or proceeding, in such amount, and with such security as shall be approved by such Judge or prothonotary; and the sixth section prescribes the form of the condition of the bond; which is, “ that the said debtor shall appear at the next term of the Court of Common Pleas of the said county,” &c.; meaning clearly the county in which he has been arrested or is detained. Everything, then, towards procuring relief for the debtor, is to be done in the county where he is arrested or detained, either by an application to a Judge of the Court of Common Pleas of that county or the prothonotary thereof, or the court itself, accordingly as the nature of the act sought to be done shall require. Therefore everything necessary to be done in the present case, in order to obtain the benefit of .the Act, was to be done in Erie county; and after obtaining an order of discharge from the arrest, the application for the benefit of the Act was to be made by the debtor, by presenting his petition to the Court of Common Pleas of that county. Then comes the next question, may the county mentioned in the condition of the bond here, be so construed as to mean Erie county, so that Seely shall be required thereby to appear at the next term of the Court of Common Pleas of that county, and present his [500] petition to the Judges thereof for the benefit of the insolvent laws? If it cannot, then the condition of the bond is void, because it is not in conformity to the requirement of the Act, and consequently no recovery can be had upon it by the plaintiff. Hutton v. Helme, (5 Watts 346). But if Seely, the debtor, had failed to appear at the next term of the Common Pleas of Erie county, and present his petition for the benefit of the insolvent laws, it appears to me that the phrase “ said county,” in the condition of the bond, might, by construction, have been considered as having a reference to the county mentioned in the obligatory part, which is Erie county, in order to render the bond available agreeably to the intent of the parties. For, I take it, that whenever anything contained in a written instrument is susceptible of different meanings, that shall be taken which will support the instrument, and not the other, which would defeat it. Wyat v. Aland, (Salk. 324). The bond and the condition are to be regarded as constituent parts of the same instrument, and the expression, “ said county,” used in the condition, does not necessarily mean the county last aforesaid, but means the county before spoken of in the same instrument, and, where two are previously mentioned, may be referred to that which tends to support the instrument, rather than the other, which would go to avoid it. Judgment affirmed.