Carle v. Delesdernier , 13 Me. 363 ( 1836 )

The action was continued nisi, and the opinion of the Court was afterwards drawn up by

Weston C. J.

The authorities cited for the defendant, to show that an action of trespass does not lie against a sheriff, for arresting a person, in obedience to his precept, who happens to be privileged from arrest, are numerous and direct. Among the most prominent are Tarleton v. Fisher et al. 2 Douglas, 671, and Cameron v. Lightfoot, 2 Wm. Bl. 1190, and Cameron v. Bowles et al. for the same cause, 2 Wm. Bl. 1195. The first was brought by a party privileged from arrest, under an insolvent act, which prescribed that he should not be liable to be arrested, by virtue of any civil process out of any court; and if arrested that he should be discharged. In violation of this exemption, he had been arrested under a writ of attachment from the court of exchequer. The general doctrine laid down by the court was, that trespass and false imprisonment will not lie against a sheriff or his officer, for arresting in virtue of a precept, a person privileged from arrests. Buller J. says in that case, “ the general law as to sheriffs is, that if a sheriff has acted in obedience to the mandate of the court, he is excused. If he arrest a peer, the writ is erroneous, yet he is not a trespasser for executing it.” And yet a peer of the realm, having high duties to perform, holds his privilege principally for the sake of the public.

In the cases from William Blackstone, both of which were for the same cause, a witness had been arrested under a precept, while on his return from court. He brought trespass and false imprisonment against the officer, and a verdict was taken in his favor, subject to the opinion of the Court, whether the action would lie. The Court held that it would not, and DeGrey C. J. by whom their opinion was delivered, goes into a consideration of the authorities, and adverts to many cases, where a privilege from arrest exists, yet he adds, that “ though in many cases the process is declared void, yet in none has any instance been produced, of an action of false imprisonment being brought, much less will it lie in the present case, where the writ is not void, nor the arrest illegal, but only improperly timed.”

In Brent v. Broadstreet et ux. 3 T. R. 183, Lord Kenyon regarded it as incomprehensible to say,, that a person shall be considered as a trespasser, who acts under the process of the court. Plummer v. Dennett, 6 Greenl. 421, did not turn upon any personal privilege, but the court advert with approbation to cases and principles, which bear against the maintenance of the action under consideration.

Although there must have been numerous arrests, upon precepts, of privileged persons, who have been discharged upon motion or upon habeas corpus, not one case has been cited or referred to, where trespass has been brought against the officer, and been adjudged to lie. This of itself is evidence, not to be disregarded, that the law has been understood to be against it.

If for the protection of persons, entitled to an immunity from arrest, in certain cases, or for certain periods, it is necessary that they should be allowed to maintain an action of trespass against an officer, in cases like the one under consideration, in addition to the remedy afforded by habeas corpus, it must be granted by the legislative power. We do not feel at liberty to sustain it, against the current of authorities, which are of too uniform and decided a character, to be affected by any inference to be drawn by analogy, from the case of Illsley v. Nichols et al. 12 Pick. 270.

The opinion of the Court is, that if the defendant is liable at all, it is not in this form of action. The verdict is accordingly set aside.

Plaintiff nonsuit.