Woodward v. Hopkins , 68 Mass. 210 ( 1854 )

Dewey, J.

The execution commanded the officer to arrest the body of the judgment debtor, and' commit' him to either of the jails in the county of Middlesex. In pursuance thereof he was committed to the jail at Concord, one of the jails of that county. No other abuse of authority is alleged against the defendant, in the mode of serving the process, than what results from taking the debtor to the jail at Concord, contrary to his request to be committed to the jail at Lowell. The laws of the Commonwealth, establishing three jails in as many different towns in the county of Middlesex, have not limited their use as a place of imprisonment to the inhabitants of, or persons arrested in, any particular portion of the county; but provide them indiscriminately as places of confinement for all persons arrested within the county, leaving it, as it would seem, to the discretion of the officer to commit to either of the jails. It would have been competent for the legislature to provide by law that the jail located at Concord should be the place of commitment of all persons arrested in certain designated towns, and that persons residing in certain other towns should, in case of their arrest, be committed to the jail at Lowell, and certain others to the jail at Cambridge. But no such law has been made. There is no ground, therefore, for saying that the officer has abused his authority, or has been guilty of oppression, in committing the plaintiff to the jail at Concord. The right to maintain this action must rest upon the supposition that the judgment debtor had the legal right to require his commitment to the jail at Lowell. But the position cannot be maintained.

The rule has been understood to be, that if the process might be served in various ways, it was at the election of' the creditor to select the mode, and the officer should conform to his instructions. Lyman v. Lyman, 11 Mass. 317. The Rev. Sts. c. 97, § 12, provide that “ when an execution is in the alternative, so that it may be lawfully served in either of two ór more ways, the creditor or his attorney may require the officer to serve it in either of those ways; and it shall be the duty of the officer to conform to such directions, if it is in his power to do so.” The more particular object of this provision was doubtless to secure to the creditor the right to take either the body of the debtor, or his land, or chattels, at his election; but it shows that the debtor has no right of election as to what property shall be seized, or whether his body may be taken in lieu of property. It furnishes no ground of action against the defendant that he committed the plaintiff to the jail at Concord, that being' one of three jails used indiscriminately for committing poor debtors in the county of Middlesex, and the same being in accordance with his precept, and well authorized thereby. Exceptions overruled.