Hecker v. Jarret

Tilghman C. J. after stating the case, delivered his opinion as follows: The plaintiff’s counsel have made four points in the argument before this court. 1 .That the execution issued against the defendant was void, and therefore the sheriff was a trespasser in executing it. 2. That Judge Cooper had a right to discharge the now plaintiff on the habeas corpus, and therefore the sheriff was a trespasser when he retook him. 3. That if the judge had no right to discharge from the execution, the sheriff was guilty of a voluntary escape, in permitting the now plaintiff to go at large, and therefore could not lawfully retake him.. 4. That the judge who tried the cause made a mistake in point of law, when he rejected the evidence offered by the plaintiff to prove that the sheriff’s deputy had acknowledged, that the now plaintiff offered him property to levy on, after [410] he had been retaken on the execution, and while he was carry in g hi m to j ail. 1. In order to understand the force of the first objection, it is necessary to state, that by the act of 21st March 1806, the form of an execution is prescribed, and it is enacted that executions shall issue in that form and not otherwise. By that form, the sheriff is directed to levy the debt and costs on the defendant’s goods and chattels, but if he has no goods and chattels then on his real estate, and for want of both real and personal estate, then the defendant’s body is to be taken &c. This act, so far as relates to the form of execution, was repealed by the act of 13th April 1807, which contains a provision in the fifth section, that no writ of ca. sa. shall issue in any case, when the defendant has real or personal estate, sufficient to satisfy the plaintiff’s demand. The execution against the now plaintiff was issued according to the form of the act of 21st March 1806, before the repeal was known, so that this objection is of a nature so very severe as to require no favour. The plaintiff’s counsel contend, that the writ was void, but I consider it rather as irregular than void. In substance it was not contradictory to the act of 13th April 1807; because the sheriff was not authorized by it, to take the body, if the defendant had either personal or real estate to satisfy the execution. But at all events, the sheriff ' was justifiable in obeying the command of the writ, because it was an action within the jurisdiction of the court who issued the execution. When a court has jurisdiction of the action, their officers are not responsible for errors in the process, and it would be of most mischievous consequence if they were. This principle is established by the cases cited by the defendant’s counsel, from 10 Rep. 76., and 2 Bac. Abr. 508., title Escape A. These cases shew, that where a writ of capias issued' against a peer, the sheriff justified an arrest under it, although it was unlawful to issue such a writ. So the sheriff may justify an arrest on a ca. sa. issued on a judgment post annum etdiem, although not revived by sci.fa. 2. The habeas corpus issued by judge Cooper was under the act of 18th February 1785. The defendant’s counsel have contended that this act was confined to the cases of persons imprisoned on criminal charges. But I am of a djf-' [411] ferent opinion. The twelve first sections of the act relate to criminalmatters; but the thirteenth is thus expressed. “ All the “ provisions herein before made for awarding and granting “ writs of habeas corpus, and proceeding thereon, in case of “ commitment and detainer for any criminal or supposed cria minal matter, shall in like manner extend to all cases where “ any person not being committed or detained for any cri- “ minal or supposed criminal matter, shall be confined or re- “ strained of his or her liberty under any colour or pretence “ whatever.” These words are too plain to admit of doubt. The power of discharging from an execution is a very important one, and should be exercised with great discretion. But the case is peculiarly delicate, where, as in the present instance, the prisoner’s right to a discharge, depends on facts of a complicated nature. A man may have property in possession, and yet it may be so incumbered by prior liens, as to be insufficient to satisfy the execution. Or he may have declined to inform the sheriff of his property, in which case he may be fairly said to have waived the benefit of the law, which exempted his body from arrest. But I will not say that the judge had no right to discharge from imprisonment in a case of this nature. I am of opinion however, that granting his right to discharge, his proceedings were void for want of notice to the plaintiff in the execution. It is contrary to the first principles of justice, to deprive a man of his rights without a hearing, or an opportunity of a hearing. If a court of record should proceed in this manner, their judgment would be erroneous, and might be reversed on a writ of error. But no writ of error lies on proceedings before a judge out of court. We are therefore obliged to decide upon them, when they come before us in this collateral way. The impropriety of the proceeding on the first habeas corpus was manifest to the judge himself. The consequence was what, might be expected, he was imposed on by one party, because he did not hear the other. Of this he was afterwards sensible, when he remanded the prisoner on the second habeas corpus. 3. As to the third point, I do not think we are bound to regard it, because it was not made before the judge who tried the cause. I inust suppose the merits to be with the [412] defendant, because the jury were of opinion, that the plaintiff informed the sheriff of no property whereon the execution might be levied prior to the arrest. The argument on which this point rests, seems to have more subtlety than strength. The sheriff does not appear to have been guilty of a voluntary escape, because in fact he did not know of the discharge under the habeas corpus, till after it took place. Without giving however any decided opinion on that matter, I do not think that we ought to grant a new trial, even supposing the plaintiff could make good a very refined objection, introduced now for the first time, and contrary to the merits of the case. 4■ It is not necessary to decide, whether the acknowledgment of the deputy, of things done by him in the course of his office* is evidence against the principal, or whether those facts must be proved by the oaths of witnesses. It is a point on which there appears to have been some difference of opinion. But the evidence rejected in this case, was not admissible, because it was not relevant. If was of no consequence,, whether property was shewn or not at the time of the second arrest; it ought to have been shewn previous to the original arrest; if that was lawful, so also was the retaking, which was only a continuance of the imprisonment. This case is not of much importance in itself; but some serious considerations have been involved in the points which were made, 'and supported by the plaintiff’s counsel with considerable' acuteness. I am of opinion on the whole, that the judgment of the Circuit Court should be affirmed. Ye ates J. concurred. Judgment affirmed.