Allen v. Martin

By the Court,

Nelson, J.

The case of Putnam v. Mann, 3 Wendell, 202, disposes of the first question. There can be no doubt the judgment before the justice cannot be impeached in this collateral way, and that so far as its validity is concerned, the return of the service of the summons is conclusive, except on a direct proceeding to reverse the judgment for the irregularity. The party injured has an ample remedy, either by action for a false return, or by writ of error.

The testimony was sufficient to prove a previous arrest and escape before the defendants broke into the plaintiff’s dwelling house-for the purpose of retaking him on the execution. The language of the officer was highly discreditable to his manners and morals, but his acts were, in judgment of law, a legal arrest, and the defendant, (now plaintiff) ought to have submitted. Jenner v. Sparks, 1 Salk. 78. Bul. N. P. 62. Hornes v. Battyn, Foster's Cr. L. 320, § 22. In the pursuit to retake the defendant, the officer had an unquestionable right to break open the outer door of the house, after making known his business, demanding admission, and a refusal. Foster’s Cr. Law, 320, § 22. 1 Salk. 78. There was no proof of demand and refusal in this case, but under the circumstances, such proof was not necessary. After the officer had been thrust out of the plaintiff’s house, and the door shut upon him, it would have been a senseless ceremony for him to have turned round, made known his business, and demanded admission. The plaintiff’s conduct superseded the use and object of these steps. It was said, upon the argument, that the judge erred in assuming that the plaintiff forcibly turned the officer out of ^ }10Ugej as fact wag otherwise. I think the testimony warranted this inference, notwithstanding the evidence of the sistei‘- ®ut *s not very material, for whether the fact was so or not, that the plaintiff was fully advised of the purposes of the officer when he returned with the posse, cannot be doubted. Indeed the case discloses, that in the course of the day preceding the first arrest, a difficulty had occurred between the parties in reference to this execution and the arrest of the plaintiff upon it, and which no doubt gave the harsh character, in some respects, to the subsequent proceedings. The verdict I think right, both in law and fact.

New trial denied.