Opinion
(June Term, 1848.)
1. The lawfulness of an arrest does not depend upon what an officer says, but upon the authority he has to make the arrest.
2. A deputy of a sheriff is so far bound by precepts in the hands of his principal that neither he nor his principal is liable to an action for false imprisonment in detaining a man in prison, arrested upon one process and discharged on that, when another valid process is in the hands of the principal, on which he was subject to arrest; and this although neither the deputy nor the person arrested knew that the sheriff had such process.
APPEAL from the Superior Court of Law of CAMDEN, at Spring Term, 1848, Settle, J., presiding.
Heath for plaintiff.
Iredell for defendant.
The action is trespass for false imprisonment in the gaol of Pasquotank in July, 1844. The defendant pleaded, in justification, two writs of capias ad satisfaciendum, directed to him as sheriff of that county. On the trial the defendant gave in evidence the two ca. sas. One of them was issued by a justice of the peace, and commanded the sheriff to take the body of the plaintiff and two other persons, and "them safely keep, so that you have them before some justice of the peace for said county, to show cause, if any they have, why they will not satisfy a judgment which lately, on 1 May, 1844, before Sion Culpepper, esquire, one of the justices of the peace for said county, Joseph H. Pool recovered against them for the sum of $30, with interest thereon from 25 August, 1842, and also the sum of twelve shillings for costs, besides your fees. Herein fail not and make due return. Witness, etc. 2 July, 1844." The other was a writ of ca. sa. in due form, issued from the County Court of Pasquotank against the plaintiff and two others, on a (299) judgment recovered in that court against them by Joseph Jones for $8, and also $8.45 for costs adjudged. It bore teste the first Monday of June, 1844, and was returnable to the next term of the court, to be held on the first Monday of September, 1844, and was issued 17 June, 1844. On the part of the defendant evidence was given that Jones' execution was delivered to him on 20 June, and that a man named John J. Grandy, who claimed an interest in the other judgment, delivered the other process to one Hunter, a deputy of the defendant, on the day it bears date, and that on that or the next day Hunter arrested the plaintiff and committed him to prison.
The said Grandy was then called as a witness, and deposed that in a few days after the plaintiff was arrested he heard of it, and went to the gaol and informed the plaintiff and one Burgess, who kept the gaol under the defendant, that the plaintiff might be discharged on the payment of the sheriff's fees. That on the next day he called again at the prison, and found the plaintiff still confined, and was informed that the plaintiff was about giving bond for his appearance at court under the insolvent debtor's act, and had procured one person to agree to be his surety and was looking out for another; and that the witness then directed the gaoler to take the bond of one surety, as he did not care for a second.
A witness was then called for the plaintiff, who stated that the witness Grandy directed the gaoler to discharge the plaintiff from imprisonment upon payment of the fees, and that he, the witness, thereupon offered to pay them for the plaintiff, in order that he might be discharged; but that the gaoler refused to turn him out until he could see the sheriff, because he said he had been so instructed by the defendant; and that afterwards the witness and others became sureties for the plaintiff's appearance under the other execution above mentioned, and the plaintiff was let out of prison.
On the part of the plaintiff evidence was further given (300) that the ca. sa. in favor of Jones was returned to the next court in the name of the defendant by his deputy, E. H. Hunter, "Executed on Spencer S. Meeds and bond filed herewith"; and that at court the defendant understood that this was a ca. sa. issued on a judgment rendered on a bond taken under a former ca. sa., and thereupon altered the return by striking out the first and entering "Not taken."
The counsel for the plaintiff moved the court to instruct the jury that the process in the name of Pool was void and did not authorize the arrest of the plaintiff; or if that were not so, that it was illegal to detain the prisoner on it, after the creditor had directed him to be discharged upon the payment of fees, and the offer to pay them. The court held that the process was valid as a ca. sa. and authorized the arrest and detention of the plaintiff. But the court further informed the jury that, whether that were true or not, the other ca. sa. in favor of Jones, though in the hands of the defendant and not in those of his deputy, Hunter, who made the arrest, or known to him or the gaoler, yet justified the defendant in this action for the arrest and detention of the plaintiff until he gave the bond for his appearance, when he was discharged from custody. There was a verdict for the defendant, and after judgment the plaintiff appealed.
The judgment must be affirmed, without reference to the point of the validity or invalidity of the justice's execution; for, admitting it to be void, yet the other was a full authority for all that was done, as the validity of that is not questioned. As to it the objections are that the plaintiff was not informed that he was arrested on it, and, in fact, (301) that he was not, for it was in the hands of the defendant himself, and was not then known to the plaintiff, nor to Hunter, who made the arrest. But that is not at all material, for if the officer expressly declares that he arrests under an illegal precept, and on that only, yet he is not guilty of false imprisonment if he had, at the time, a legal one, for the lawfulness of the arrest does not depend on what he says, but what he has. S. v. Kirby, 24 N.C. 201; S. v. Elrod, 28 N.C. 250. Undoubtedly, if the gaoler had discharged the plaintiff, the sheriff would have been liable for an escape on Jones' execution; for the gaoler is the sheriff's deputy, and bound to take notice of the writs in the hands of his superior, and a detention by the gaoler is justified, if one by the sheriff himself would have been by the same process. No doubt the ca. sa. from the County Court caused the defendant to order the gaoler not to let out the plaintiff without notice to him, as he knew it was his duty to detain him until he paid that debt also. It would have been more creditable to the defendant to have left the writ with the gaoler, so that the plaintiff might have had his discharge in the defendant's absence, upon payment or giving bond. But he was not bound to do so, and, in his own hands, it justified the defendant's servants in arresting and detaining the plaintiff. The subsequent alteration of the return, though very improper, can make no difference, for it was made after the plaintiff was let at large, and cannot affect the process as an authority for his arrest and detention, while he was in prison. To that purpose it was sufficient, whether the sheriff made a true or false return on it or none at all.
PER CURIAM. Judgment affirmed.
Cited: Hailes v. Ingram, 41 N.C. 479; S. v. Lutz, 65 N.C. 505; S. v. James, 80 N.C. 372.
(302)