Kelsey v. Parmelee

Williams, Ch. J. The question arising on the demurrer to the defendants’ plea, is, whether the justice might direct his warrant to an indifferent person, by name, as in criminal cases. If he might, it is not claimed, that the plaintiffs can recover ; if he could not, the defendants’ plea is clearly insufficient. By statute, it is made the duty of sheriffs and constables, to execute all lawful writs, processes and warrants, directed to them. By another statute, every justice of the peace has authority to issue process, to be served in any part of the state, to apprehend and bring before him any person against whom complaint is made, for any criminal offence, for which he ought to be brought before said justice, for trial or examination ; and may, in like manner, grant a summons or capias for witnesses, in such case. And such justice of the peace, in all criminal prosecutions, shall have power to issue process, directed to any indifferent person, to be served in any part of [264] the state, to apprehend and bring before him, any person against whom a complaint is made for a crime ; and in like . r i manner, to grant a summons or capias tor witnesses; and sucjj indifferent person shall have lawful authority to execute the same. Slat. 175. tit. 20. c. 1. s. 134. (ed. 1838.) There is also another statute, regulating civil process, which provides, that no writ of attachment or summons shall be directed to an indifferent person, unless there are more than one defendant, described as of different counties, except an oath is taken that the plaintiff is in danger of losing the debt, damages or other thing demanded, Stat. 42. tit. 2. c. 1. s. 2. (ed. 1838.) The plaintiffs claim, that the process under which they were held, was a civil process, and was therefore void, as no such oath was taken. The defendants, on the other hand, claim, that the process was not only in form criminal process, but was issued against the plaintiffs for a criminal offence; and was, therefore, strictly within the powers conferred by the former statute. The statute upon which the process complained of was issued, enacts, that “ if any person or persons shall have in his or their custody, any goods or chattels, belonging to the estate of any deceased person, or any bills, bonds, notes, accounts, or any thing that may tend to disclose such estate, and on demand of the same, by the executor or administrator, shall refuse to deliver them, or to give any satisfactory account to the executor or administrator, it shall be lawful for any justice of the peace, on the complaint of such executor or administrator, to issue his warrant, and cause such offender to be apprehended, and brought before him ; and may bind him, with sufficient surety, to appear before the next court of probate ; and such court shall have power to examine him, on oath, concerning the matters complained of; and if he shall refuse to be examined on oath, and to answer the interrogatories put to him, by such court, it shall be lawful for the court to commit him to prison, there to remain until he shall conform to the law.” Stat. 230. tit. 31. c. 1. s. 16. By the original statute of 1699, the justice was expressly authorised to “ award warrant to some fit person.” Stat. 59, 60. (ed. 1702.) tit. Intestate Estates, (a) Much of the argument in this case, [265] has turned upon the question, whether concealing the goods of a deceased person, after demand, is a crime. But in the view the court has taken of this case, it is not necessary to determine that question. For if it is admitted, that the offence is not a crime, technically so called, the plaintiffs must go further, and shew that the complaint against them, in this case, is a civil action, embraced in the statute regulating proceedings in civil actions. At common law, it cannot be doubted, that a justice of the peace had a right to direct his warrant to any particular private person by name ; who could always justify the execution thereof, in an action of false imprisonment. So it was adjudged by Lord Ch. J. Hale, in Rex v. Kendall, 1 Ld. Raym. 66. And it has been ever since recognised as law, by all writers and judges, so far as we know, upon this subject; though it is said, by some writers, that it is better to direct to a known officer, as they are bound to execute. 1 Chitt. Cr. L. 38. (31.) When then our statute authorises a magistrate to issue a warrant to apprehend a person, it would seem to follow, that it might be done, in the manner authorised by the common law, unless the statute directed the mode, or restrained him in the manner of executing the authority. The plaintiffs claim that this is done, by the statute directing process in civil actions, and they claim that this is a civil action ; and if they are right in this, that the process by which they were arrested, is the process spoken of in that statute, it is clear, that it will not justify the arrest. That statute was intended to regulate the ordinary process in civil actions. It provides, that the writ and declaration shall go out together ; that the writ shall be a summons or an attachment; that it shall be signed by certain officers, there designated ; that it shall be served twelve or six days before the court, and shall be returned within a limited time; that the attachment shall be against the goods or chattels of the defendant, and for want thereof, against his lands or person ; and that it shall be served, by attaching the goods and chattels of the defendant, or if none can be found, his lands or person. This process is one of a different character. It is not a summons; for the body is to be arrested. It is not an attachment against the goods or estate; for neither of them could be taken. It is not to be served twelve or six clays before the court; nor is [266] it returnable a given time before the day of trial; but it is a warrant, properly so called, against the person only, to be ** _ executed and returned forthwith. Nor can it be served, by attaching the goods and chattels, or the lands, of the defendant. We have, therefore, no hesitation in saying, that this is not the process intended by that statute; and of course, is not to be regulated by it. We have then a case, where the magistrate is authorised to issue process; and if it be not a criminal case, then no statute provision is made, how it shall be directed. A like authority is given to justices of the peace, in other cases, not strictly criminal, where no specific mode of direction is given. Thus, upon application to a grand-juror against a witness, who refuses to appear or answer before them, the justice may issue a warrant to enforce the duty. Stat. 174. tit. 20. c. 1. s. 129. (ed. 1838.) Or to compel a witness to give a deposition in a civil suit. Stat. 54. tit. 2. s. 46. (ed. 1838.) So too, if a person under an overseer shall refuse to submit to his authority, two justices may, upon application, issue their warrant, and cause such person to be brought before them. Stat. 350. tit. 50. s. 7. (ed. 1838.) A similar provision is made relative to stubborn children, upon complaint of their parents or others having the charge of them. Stat. 105 .tit. 13. s. 3. (ed. 1838.) Idle persons also may be apprehended, on warrant from a justice of the peace, and sent to the work-house. Stat. 658. tit. 118. s. 8. (cd. 1838.) So too, where a counterfeit bill or note is lodged with a magistrate, he may, at his discretion, cause the person from whom it was taken, to be brought before him, and examine him on oath. Stat. 114. tit. 17. s. 4. (ed. 1838.) In these cases, there is no express provision that the justice may direct his warrant to an indifferent person, unless they are within the 134th section of the act concerning crimes and punishments ; and yet, we believe, the practice has been unquestioned to direct warrants, in these cases, to indifferent persons ; and the case before us, is one of similar character. If it is a criminal offence, then, it is embraced by the 134th section. If it is not, the justice is left to regulate himself, by the practice of the common law. Perhaps it may be claimed, that as the statute under which the process was issued, originally authorised the justice to di [267] rect his warrant to some fit person, wfiien that expression was cancelled, it is to be presumed, that the legislature intended to take away the power. The court do not, however, so understand it. The great object of the revisers of the statutes, was, to condense them ; and they have often omitted that which they considered as unnecessary : and upon this principle, they might well omit that expression. This is confirmed by the fact, that Judge Swift, who assisted in the revision of the statutes in 1821, recognises the common law as stated above. 2 Sw. Dig. 392. And this is also corroborated by the fact, that in certain cases, this authority is taken away, and justices are expressly enjoined to whom to direct their warrants; as in the removal of paupers, the warrant must be directed to the constable of the town. Stat. 361. tit, 52. c. 1. s. 6. (ed. 1838.) So too, in the case of dangerous lunatics, the same direction is to be given. Stat. 353. tit. 50, act of 1824. 5. 1. (ed. 1838.) Without giving an opinion, therefore, whether this case is embraced in the 134th section of the act concerning crimes and punishments, we are satisfied, that the justice had good right to employ an indifferent person to execute this process ; and the defendants, therefore, were justified in making their arrest; and we advise the superior court to adjudge the plea of the defendants to be sufficient. In this opinion the other Judges concurred. Demurrer overruled. Footnotes [(a)] See also Stat. 264. tit, 60. c. 1. s. 8. and note (4). (ed. 1808.)