Warner v. Lowry ( 1825 )

The opinion of the Court was delivered by

Royce, J.

It is unnecessary, in this case, to decide whether Barney, while in custody on the criminal warrant, returnable before justice Robinson, was liable to arrest, on the plaintiff’s execution, or not: though if the cause depended on that question, it would probably be considered that he was liable to such arrest, and, in point of law, was arrested by the delivery of the execution to the same officer who had him in custody on the warrant. But this arrest would be subject to the prior and paramount arrest on the warrant. And this opinion would have proceeded upon the manifest distinction between the situation of Barney, at the time, and that of all persons to whom the privilege from arrest has been extended. This point, however, is not decided, on the present occasion.

It is admitted, by the pleadings, that the defendant’s deputy, while holding the execution in favour of the plaintiff, was with Barney, at the office of justice Robinson, in Burlington. It was his duty, therefore, to have executed the plaintiff’s writ, unless legally prevented. And though we do not say, that this should have been done, pending the criminal inquiry, yet it certainly should, upon the determination of that inquiry, unless the officer was prevented from attending, to wait the result of that prosecution, and make the arrest for the plaintiff, by some necessary and sufficient reason. The plea in this case, discloses no such reason. On the contrary, the inference is, that the same officer who arrested Barney, and had him before the justice court, upon the warrant, continued his custody of him, before that court. It is not alleged that the custody of Barney was, by order of the justice, transferred from the defendant’s officer, to any other person. It is said, indeed, that he was surrendered and delivered to the charge of the justice. But this is to be understood according to the subject matter to which it relates, and with reference to the proper powers and duty of the justice. It is not alleged that the justice received the personal custody and control of the prisoner, or that the defendant’s officer was discharged from that duty. The plea then amounts only to this; that the defendant’s officer, in obedience to the warrant, arrested Barney, and had him in custody, before the justice court, subject to the legal order and disposition of that court. And, for any thing that appears to the contrary, the custody of the same officer continued unchanged, till Barney was discharged. But, if we should understand the defendant’s officer to have been discharged by the justice, from the custody of Barney, yet his duty to the plaintiff would, equally require, that he should wait an opportunity to arrest upon the execution, if no sufficient reason prevented: and none is alleged.

Judgment, that the plea in bar, to the first and second counts of the declaration, is insufficient.