Hall v. Hall , 85 Mass. 5 ( 1861 )

Merrick, J.

In the case of Lothrop v. Ide, 13 Gray, 93, it was determined that the authority to arrest the body, which is given by Rev. Sts. c. 8, § 11, arises only when the collector cannot find sufficient goods on which to levy his warrant of distress. From the return upon the warrant, copies both of the warrant and return being annexed to the writ and making a part of the declaration, it does not appear that the defendant made any search whatever for goods, by the seizure and sale of which he might have obtained payment of the tax. And the statements in the bill of exceptions show that the plaintiff was possessed in fact of personal property liable to be taken on the warrant, and more than sufficient in value to satisfy the tax to be collected. It is obvious, therefore, that the arrest of the plaintiff by the defendant was illegal, and that the warrant under which he assumed to act constitutes no defence to the present action.

For the same reason, it is immaterial that at the time of making the arrest the defendant in good faith believed that the nets which were shown to him were exempt from seizure on his warrant; for there was other property which might by the use of ordinary diligence have been found, but for which no search whatever was made. If the nets were in good faith thought to be necessary implements in the conduct of his trade or occupation, and for that reason exempt from liability to seizure to enforce payment of the tax, the officer might perhaps be excused from proceeding to levy upon them, unless with the consent of the owner, and with the assurance that the seizure should not be made the ground of action or complaint.

The evidence in relation to the plaintiff’s confinement in jail, and the manner in which he lived while he was held in custody there, was properly admitted, for the purpose and under the limitations subject to which it was offered. His detention in prison and the inconvenience and suffering to which it subjected him were direct consequences of the illegal acts of the defendant in the service of the warrant of distress; and proof of these facts was therefore competent to show the damage he had sustained, and the compensation which he ought justly to recover.

Exceptions overruled.