Bush v. Pettibone

By the Court, Pratt, P. J.

The only defence interposed to this action by the sheriff, was the order of Judge Richardson. No preliminary proof was adduced to show that the prisoner was insane, or, in the language of the statute, that he appeared to be so. In order to justify the defendant in discharging the prisoner, the subject matter of the order must appear to be within the jurisdiction of the officer granting it, and it must be the precise order which the statute authorized him to make. In such case, if the order, on its face, is such as the officer from whom it emanates has power to grant, for the guidance of another officer, the latter may justify by the order alone, without showing that all the preliminary steps prescribed by law to give jurisdiction, had been taken. (Bennett v. Burch, 1 Denio, 146.) It rests upon the principle that process regular on its face, is alone sufficient to justify the officer executing it. (Savacool v. Boughton, 5 Wendell, 170.) But to have this effect the order must be regular on its face—such as the officer making it was empowered to grant.

The insanity of the debtor, alone, would constitute no defence to an action for an escape; and the object of the statute under which these proceedings were had, is not merely to discharge the debtor from imprisonment, but rather to provide for his conveyance to, and confinement in the state lunatic asylum. (Laws of 1842, p. 141.) The main object is the debtor’s restoration to reason ; and his discharge from imprisonment is but incidental to the accomplishment of that object. If the order therefore had simply directed him to be sent to the asylum, perhaps it might have been a justification, but nothing appears in the order, or elsewhere, showing that the proceedings before the judge were instituted with that view, or resulted in the attainment of that object. For aught that appears in the order they were instituted simply for the purpose, on the part of the young man, of procuring his father’s discharge from imprisonment, or for the purpose of taking him home and endeavoring to cure him there. The law allows a discharge from imprisonment for no such purpose. If the debtor was to be taken from the custody of the sheriff, it must be for the purpose of sending him directly to the asylum, in order that his recovery from insanity might be effected as soon as possible. The plaintiff had a right to a strict observance of the law; as the same act gives him a right to re-arrest the debtor as soon as he recovers. As the object of the imprisonment is to compel payment of the debt, and as payment could hardly be expected from the imprisonment of an insane man, the act may be considered as passed as well for the creditors as for the insane debtor. If the party may be discharged from imprisonment without any direction for his safe keeping, he might, on his recovery, if he ever-recovered, be beyond the jurisdiction of the court, and the reach of the plaintiff’s process. This could not have been the intention of the act. It is insisted on the part of the defendant, that we are to presume that further directions were given in relation to the safe keeping and removal of the lunatic to the asylum. But as the defendant claims to justify by the order alone, it should in itself cover the whole ground, and show enough to constitute a complete defence. (12 Mass. Sep. 319.) A new trial must therefore be granted.