Williams v. Ives

Hinman, J. The defendants ask for a new trial on three grounds; 1st. Because an action of trespass will not lie against the officer, who, it is said, has only been guilty of a mere omission to perform his duty in not returning his process ; 2d. Because he had a sufficient legal excuse for not proceeding further with the service of his process; and 3d. Because the damages should have been merely nominal, and the court ought so to have charged the jury. On the first point we are referred to the case of Waterbury v. Lockwood, 4 Day, 257, as showing that trespass will not lie against an officer for a mere neglect of duty. But the neglect in that case was not a neglect to return the process ; but a neglect to take such care of the property levied upon, a horse, as to prevent its straying away, in consequence of which the officer could not sell it at the time appointed for that purpose. The case was similar to that of Gates v. Bayley, 2 Wils., 313, where it was held that the mere neglect to take such care of cattle impounded as to prevent one of them from dying, was not such an act as would render the impounder liable as a trespasser db initio. In such cases the neglect of duty has reference to the care which is taken of property which is lawfully in the officer’s custody; and for such neglect he can not be sued in trespass, because he has been guilty of no positive wrong; and the rule is, that in order to render an officer liable as a trespasser, he must either do some positive wrong, such as using property lawfully taken as his own, instead of keeping it merely as in the custody of the law; or he must omit to do that, without which he is precluded from showing that the original act of taking was lawful, as in the case under consideration, to make return of his process. He must justify by his process, or he stands in the condition of a naked trespasser without process. [574] And he can not prove by parol, that he had a legal warrant, but he must show it, and must show by his return upon it what he did under it, that the court may see whether his acts are justified or not. That a mere nonfeasance is not such an abuse of an authority given by law as renders a party liable as a trespasser from the beginning, was one of the resolutions of the court, in The Six Carpenters' Case, and has been held as law ever since, but it does not affect this question, in which the defendant Ives, by neglecting to return his writ, is unable to show that he had any process which would justify the original taking of the property. That mesne process must be returned, or acts done under it will be deemed to be tortious, is sufficiently shown by the case of Rowland v. Veale, Cowper, 18, which, on this point, was decided on the authority of Freeman v. Blewitt, 1 Salk., 409, and a case in 2 Rol. Ab., 569, and has been followed by Cheasley v. Barnes, 10 East, 73, and our own case of Jordan v. Gallup, 16 Conn., 543, and is now believed to be law wherever the common law prevails. If there is no return of the process, it is, at least after the time limited by law for its return, the same in effect as if there was no process, because none can be shown. The act therefore, whether it be a taking of the body, or an attachment of property, being forcible and direct, is of course a trespass. The second point made by the defendants, is involved in the decision of the first. Had the officer, when he discovered that the writ was issued without any authority from the plaintiff, returned the property to the owner, and made a true return of the facts upon his process to the court, he would then have been in a condition to claim that his acts were excusable under the circumstances. But as he made no return of process he is precluded from showing that he had any; and as he could only justify his original taking by his process, he stands, as to acts done under it, in the light of a trespasser. The charge of the court in respect to damages, so far as it relates to the question of whether nominal damages only [575] should be given, appears to us to be unexceptionable. It is true the jury were told that they might take into consideration the necessary expense of prosecuting the suit over and above the taxed cost, in their estimate of damages. We presume there was sufficient evidence of wantonness on the part of the officer to justify this part of the charge, or counsel would have made a point of it, which has not been done. That the jury may consider the expense of a plaintiff in obtaining redress for a wanton or malicious injury, has been too often and too recently decided to be now made a question. We only allude to this subject therefore, that it may not be considered that the court intend to sanction the idea, that vindictive damages are to be given in all cases of trespass, or that the expenses of litigation, which the jury are usually advised they may take into consideration in cases of wanton, malicious or culpable injuries, are in fact any thing strictly recoverable by way of damages. But they are only to be considered as a reasonable ground for increasing the vindictive damages, recoverable in a class of cases, in order that a plaintiff in this class of cases may not be impoverished by the expense of the litigation necessary to obtain justice. We do not advise a new trial on any of the grounds on which it is asked. In this opinion the other judges, Storrs and Ellsworth, concurred. ‘New trial not advised.