Emery v. Chesley

Woods, J. A writ was placed in the hands of Perkins, who, on the 17th of January, 1846, made an attempt to servo it by arresting the bodies of the defendants who were therein named; and the principal question that the case presents is, whether he succeeded in making the arrest. "What constitutes an arrest is well described in Pike v. Hanson, 9 N. H. Rep. 491, which was an action of trespass for making one. “ Bare words (it is there said,) will not make an arrest; there must be an actual touching of the body; or, what is tantamount, a power of taking immediate possession of the body, and the party’s submission [202] thereto.” Further, "Nor does it seem necessary that there should be any very formal declaration of an arrest. If the officer goes for the purpose of executing his warrant; has the party in his presence and power; if the party so understands it, and, in consequence thereof, submits, and the officer in the execution of the warrant takes the party before á magistrate, or receives money or property in discharge of his person, we think it is in law an arrest, although he did not touch any part of the body.” In brief, if the intention to make an arrest, and the power of doing so in form, coexist, and are made known to the party who does not resist, then an arrest is made, and no more is required. It appears very clearly, from the testimony of the petitioner himself, that the officer intended to make an arrest; that he had the power of doing so, and that while he had that power he communicated to the petitioner his purpose, and made known to him the nature of the process, or at least the cause of the prosecution or action. The petitioner does not assume to relate what followed, but from other testimony it appears that he did not resist the process, but, on the contrary, obtained permission of the officer to withdraw for a few minutes, thus recognizing his relation of prisoner. The petitioner says that the officer had previously arrested him on a similar process, for the same cause of action; that the action had been discontinued, and that the officer, on calling, remarked that he had come on the same business; that he had come to take away two .of the family. He does not pretend that he had a doubt of"the officer’s purpose to hold him as a prisoner, or that he resisted, or could have resisted the'execution of such a purpose. The evidence which bears directly upon this point, besides the testimony of the petitioner, is very full and [203] explicit; and although the officer does not state, in his deposition, all that is admitted by the petitioner in his conversation with Mr. Soule, to have occurred on the day of the alleged arrest, there is no reason for doubting that the admissions were made as stated in the testimony of Mr. Soule and Sayles, or that the admissions themselves were true. The testimony of Watson goes far to confirm their truth. He testifies to the language used by the petitioner the day after the occurrence, when its particulars were distinctly impressed on his mind, and when, as in the other conversation proved, there existed no motive on his part for making the representations that he did make, if they were untrue. This evidence proves, beyond controversy, that an arrest was made, and thus the material gravamen stated in the petition is disproved. If the petitioner had no actual notice of the return day, or of the nature of the action, or of any other particulars that it behooved him to know, it was his own fault. He escaped from the officer, and thus declined the means which were afforded him to gain the information, and rendered it impossible for the officer to impart it, had his duty required him to do so. But, independently of the failure of the petitioner to establish his ease in this particular, there is another objection, which is always regarded as fatal. The court will not interpose upon a petition for a new trial,.unless it appear that justice requires such interposition. It does not appear, and it is not even alleged in the petition, that the petitioner had a defence to the action. He states in his affidavit that he had one, without stating its nature, and in his petition simply states that a further hearing will be both just and equitable. This is wholly insufficient. Nothing appears by which the court can judge whether any substantial defence could be made by the petitioner upon a new trial, nor, of course, whether such [204] a defence could be made, as equity and good conscience require that he should have an opportunity to make. The petitioner does not deny that there was a good cause of action against him. If the officer made a false return, or if the service made were insufficient in any particular, the remedy lies open to the parties aggrieved, without the summary aid of the court invoked by the petition. Petition dismissed.