Butler v. Washburn

Eastman, J. The first three exceptions taken in this case are substantially settled by the Revised Statutes. By chap. 1, sec. 13, it is enacted that all words purporting to give a joint authority to three or more public officers, shall be construed as giving such authority to a majority of them, unless otherwise expressly declared. And by \ 2, chap. 34, it is provided that a majority of the selectmen shall be competent to act in all cases. The appointment of the collector was therefore legally signed, as were also the warrant and tax bill; and the bond was approved by sufficient authority. Two of the selectmen were clearly competent to perform all of these duties. Independent of the statute, the appointment would be good upon common law principles. All of the selectmen consulted together, and agreed that the defendant should be appointed; and after such consultation it was sufficient that the appointment be signed by two only. And with the warrant and tax bill also, were it necessary that they be signed by the three, the signature of the selectman, affixed by his son in his presence, and by his direction, was a good execution. Under such circumstances, it was as much his act as if written by his own hand. The certificate of approval upon the back of the bond purports to have been made on the day of the appointment. The town or selectmen could accept the bond. Rev. Stat. chap. 36, § 4. And this certificate is a sufficient acceptance by the selectmen, and is prima facie evidence, at least, of [257] its having been accepted within six days of the defendant’s appointment. The exception that there was no proof that the warrant or tax bill were in the defendant’s hands, or that he acted under them in making the arrest, is controverted by the facts stated in the case. In September previous to the arrest, when the defendant notified the plaintiff of his tax, they were in his hands, and they are to be presumed to continue there — that being their proper place, and he having the proper custody of them — until some evidence is offered to show the fact to be otherwise. The other exceptions raised by the case apply to the request made for instructions to the jury, and the course taken by the court thereon. The first instruction asked for was, that Butler, having turned out a watch to the defendant on the first day, the defendant should have distrained the watch, and not have arrested his body. But it is to be observed that the arrest was made before the watch was offered. The case finds-that it did not appear that the plaintiff had any property whatever; and if the collector could find no property on which to make distress, he clearly had the right to make the arrest. For want of goods and chattels whereon to make distress, the collector may take the body of any person neglecting or refusing to pay the tax assessed against him, and commit him to the common jail. Rev. Stat. chap. 45, § 8. Having made the arrest, he had no power to dis-train the property, even had the watch been turned out. Brinley v. Allen, 3 Mass. Rep. 561; 1 Cowen’s Rep. 56; Sunderland v. Loder, 5 Wendell’s Rep. 58. But the watch was not turned out to be distrained upon. It was offered to the defendant, and accepted by him, as a pledge for the appearance of the plaintiff the next day at the house of Aldrich, after the arrest had been made. The request to charge the jury upon this point was rightly declined. . [258] The second instruction desired was not called for upon the facts stated ; and the instructions given by the court in regard to the matter were sufficiently favorable to the plaintiff. An arrest upon a warrant for the collection of taxes, is in the nature of an arrest at common Jaw upon final process. An arrest is usually made by taking the person into actual custody. The common practice is to put the hand upon the individual, and any touching, however slight, is enough. Genner v. Sparks, 1 Salk. Rep. 79; S. C. 6 Mod. Rep. 173. But no manual touching of the body, or actual force, is necessary to constitute an arrest, if the party be within the power of the officer and submits to the arrest. Horner v. Batten, Bul. N. P; 62; Gold v. Bissell, 1 Wendell’s Rep. 210; Pike v. Hanson, 9 N. H. Rep. 491. An escape is either negligent or voluntary; negligent, where the party escapes without the consent of the officer; voluntary, where the officer permits him to go at large. After a voluntary escape, if the party was in custody on a writ of execution, he cannot be retaken; and the officer would be liable to an action for false imprisonment if he retook him. 2 Johns. Cases 3 ; 1 Saund. 35; 5 Term Rep. 25. And if the creditor assent that his debtor be discharged, he cannot- be again arrested, but the debt is discharged. Powers v. Wilson, 7 Cowen’s Rep. 276; Little v. N. P. Bank, 14 Mass. Rep. 443; Poucher v. Holley, 3 Wendell’s Rep. 184; Tanner v. Hayne, 7 D. & E. 420; Gould v. Gould, 4 N. H. Rep. 174. Alter a negligent escape, the officer may in all cases retake the party. 1 Saund. 35 ; 6 Mod. Rep. 231; 9 Petersd. Abr. 87, 88. Or if the defendant voluntarily return before suit, it is equivalent to a recaption on fresh pursuit. 5 Johns. Rep. 89 ; 7 Johns. 175, 178 ; 6 Cowen’s Rep. 732. It is quite questionable whether the evidence in this case would have warranted the jury in finding that there had been a voluntary escape, or any abandonment of the arrest, [259] But the question was submitted to the jury, and they have negatived the fact by their verdict. If there was any escape, it was a negligent one, and such as would justify a recaption, or such as would be cured by a voluntary surrender. It is evident that the defendant never intended to discharge the plaintiff from the arrest; till he was discharged on their way to Lancaster. It is a mistake to suppose that an officer is bound, in order to retain his arrest, to keep his hands upon a prisoner, or to secure him, either by cords or keepers. An officer may allow reasonable liberties, and as between him and the debtor, the latter cannot complain. He may complain that the officer has detained him in custody longer than he had a right to do before committing him; but not of liberties which he requests, or to which he assents, provided there be no abandonment of the arrest. A creditor may complain of improper indulgences granted, but not so with the debtor. There was here no escape such as the plaintiff could take advantage of. Neither was there any thing improper or illegal in the conduct of the defendant after the plaintiff surrendered himself at Aldrich’s. He informed the plaintiff that he would get ready as soon as he could; that he had got to get oats for.his horse; and to this the plaintiff made no objection. The distance from the place of arrest to the jail was such as to require some preparation for the journey, and the defendant was entitled to a reasonable time to make the preparations. Nothing shows that he was not ready in a reasonable time, or that the plaintiff made any complaint of the delay. The third request was equally untenable. There was nothing in the evidence showing spite or ill will. An officer, in executing final process upon the body, is bound to commit the prisoner, if not restrained by legal proceedings, or the tendering of bonds as provided by statute, and he has a perfect right to use all proper and necessary means to secure him and lodge him in jail; and to do this he may [260] call to his aid the posse comitatus of the comity, if found necessary. After the plaintiff had shown such feelings, and had conducted in the manner set forth in the case, the defendant was perfectly right in using the' straps and confining his arms. It was necessary for his own protection and the due execution of his process. We discover nothing in the case that called for the fourth instruction requested, and the court properly enough passed it over. The fifth request appears to us to be equally groundless. An officer must be the judge of the time at which he will start for the jail, and the state of weather in which he will go. He has a right to start, at any hour he may choose, or his business require, and in such weather as he may find at the time; provided he does not needlessly expose the prisoner’s health or do him a personal injury. It will not answer to restrict an officer in these particulars, and no specific rules can be laid down without seriously interfering with the rights and duties of an officer. To fix and limit the hours in which he may travel, or to say that he is to be governed by any particular temperature in the weather, would be alike impracticable. He must exercise his judgment in these matters, and it is a sufficient protection to the prisoner, to hold the officer liable for any needless exposure or unnecessary personal injury. The court entertain no doubt that there should be Judgment on the verdict.