Clayton v. Scott

[389] The opinion of the court was delivered-by Royce, J. This case was tried in the court below upon a general demurrer to the defendant Daniel O. Carpenter’s second pica. The plea does not attempt to justify the trespass complained of upon any other ground than that he was obeying the command of the precept set out in the plea. That precept appears to be legal in form, and the officer could, no doubt, have justified under it, if he had executed it in the manner required by law. The declaration charges that the defendant arrested the plaintiff in Putney, in the county of Windham, and imprisoned him in the jail in Bennington, in the county of Bennington, when there was a lawful jail at Newfane, in the county of Windham. The statute provides, ch. 33, § 59, that, “whenever any officer, or other person authorized by law to serve any writ, warrant, execution or process, is required by law to commit any person to jail, such commitment shall be made in the county in which the arrest shall be made, unless otherwise directed by law.” Section sixty provides that, “ if there shall not be a legal jail in the county where such arrest may be made, such commitment shall be made in an adjoining county where there is a legal jail.” The fact that therq was a legal jail in the county of Windham, where the 'arrest was made, is not denied in the plea, and it was clearly the duty of the officer to have committed the plaintiff to that jail, unless the command in his precept to commit him to the jail in Bennington or Manchester, in the county of Bennington, is to be regarded of paramount obligation to the requirements of a statute law of the state. We do not so regard it. All that is required of an officer is, that he shall execute his precept according to law; and when he violates the law in its execution, he cannot justify under it. So that, admitting all that is stated in the plea, it furnishes no justification for the trespasses complained of in the declaration. And the judgment of the county court, that the plea was sufficient, is reversed, and cause remanded.