
    Perley S. Brown vs. Stephen H. Mosher.
    Somerset.
    Opinion November 3, 1890.
    
      lleplevin. Warrant of Distress. Officer. Way. Agent. County Commissioners. Jurisdiction. Amendment. U. 8., c. 14, § 11; c. 18, § § 2, 3, 4, 37; c. 78, § § 6, 8,18.
    
    A warrant of distress against the inhabitants of a town does not per se protect an officer, distraining the goods and chattels of one of its inhabitants, when it does not affirmatively appear on the face of the warrant that the court of county commissioners had jurisdiction of the subject matter of the judgment on which it was issued.
    If, however, the record of the judgment shows such jurisdiction in fact, the . officer’s legal execution of the warrant may bo justified notwithstanding that fact does not affirmatively appear on the face oí it.
    A petition for the appointment of an agent to open and make passable a highway under the provisions of R. S., c. 18, § 37, duly entered at a regular session of the court of county commissioners, maybe ordered to be heard and heard, after proper notice therefor, in the vicinity of the location; and the court may adjourn the session, at which the petition was entered, to the time and place ordered.
    
      If such adjournment does not appear of record, the court of county commissioners may, at auy regular session, amend its record so that it may accord with the facts.
    On report.
    This was an action of replevin. It was admitted that the plaintiff was the owner of the chattels, that they wrere not exempt from attachment; and that the defendant, at the time of the taking, was a deputy of the sheriff for Somerset County authorized to serve civil process.
    The defendant justified the taking by virtue of a warrant of distress, issued by the county commissioners of Somerset County against the inhabitants of Detroit, upon which he had seized the property to satisfy the warrant.
    It appeared that the county commissioners had laid out a way, called Peltoma bridge, across the Sebasticook river between Pittsfield and Detroit, and it not having been opened within two years they caused it to be done, and the bridge to be built, by an agent appointed by them. The proceedings of the commissioners ended in issuing a warrant of distress against Detroit to enforce their judgment rendered thereon, and to collect the proportional part, of the cost of building that portion of the bridge lying within the limits of the town.
    The plaintiff, an inhabitant of Detroit, contended that the warrant of distress was void, and opening of the way invalid, for the reasons which appear in the opinion of the court.
    
      S. 8. Haclcett, for plaintiff.
    Counsel cited: Longfellow v. Quimby, 29 Maine, 196; Toll Bridge, Pet’rs, 11 Id. 263 ; Waterville v. Barton, 64 Id. 321; Bangor v. Go. Oom. 30 Id.' 270; Levant v. Co. Com. 67 Id. 429; Matthias River Co. v. Pope, 35 Id. 19; Sumner v. Go. Com. 37 Id. 112; Harhness v. Co. Com. 26 Id. 353; Water-house v. Co. Com. 44 Id. 368; Bethel v. Co. Com. 60 Id. 535 ; State v. Co. Com. 78 Id. 100; State v. Hall, 49 Id. 412; White v. Riggs, 27 Id. 114; Ferger v. Wesler, 35 Ind. 53; Pillsbury v. Sgringfield, 16 N. H. 565 ; Lancaster v. Pope, 1 Mass. 85; Com. v. Metcalf, 2 Id. 118; . Com. v. Chase, 2 Id. 170; Com. v. Cambridge, 4 Id. 627; Com. v. Fgremont, 
      6 Id. 491; Com. v. Cambridge, 7 Id. 158; Cent. Turnpike, Petrs, 1 Pick. 13 ; Hinckley, Petr, 15 Id. 447 ; Porter v. Co. Com. 13 Met. 479; R. R. Co. v. Co. Com. 51 Maine, 36; Williams, Petr, 517 Id. 517; Fairfield v. Co. Com. 66 Id. 385 ; Buffum y. Ramsdell, 55 Id. 252; Winslow y. Lombard, 57 Id. 356; Walton y. Greemuood, 60 Id. 356; Holmes v. Holmes, 63 Id. 420; Prentiss y. Parks, 65 Id. 559 ; Leonard y. Motley, 75 Id. 418; Small y. Pennell, 31 Id. 267; Miller y. Brinkerhoff, 4 Denio, 118 ; Woodman y. Somerset, 25 Maine, 300; Matter of Ferguson, 9 Johns. 239 ; Dixon y. Highway Com. N. W. Rep. (Mich. 1889), 814; Snyder v. Goodrich, 2 E. D. Smith, 84; Germond y. People, 1 Hill, 343; Guptill y. Richardson, 62 Maine, 257, 264; Gurney y. Tufts, 37 Id. 130; Savacool y. Boughton, 5 Wend. 171; cited by Walton, J., in Howell y. Tripp, 61 Maine, 429; Green y Fig in, 5 A. & E. (N. S.) 100.
    Court should refuse a return. Wheeler y. Train, 4 Pick. 168 ; Martin y. Bayley, 1 Allen, 381 ; Ingraham y. Martin, 15 Maine, 373.
    
      S. O. Strout, H. W. Gage, and O. A. Strout, J. W. Munson with them, for defendant.
    Warrant of distress sufficient: Ercom. Exon. § 101, p. 128 ; R. S., c. 3, § 1; c. 18, § 37 ; c. 78, § § 6, 7, 9, 18 ; c. 80, § 10; Bryant y. Johnson, 24 Maine, 307; Stevens y. Roberts, 121 Mass. 555 ; Eames v. Savage, 77 Maine, 212; Waterville y. Barton, 64 Id. 331; Grover y. Howard, 31 Id. 548 ; Caldwell y. Haiokins, 40 Id. 528 ; Gray y. Kimball, 42 Id. 307 ; Seekins v. Goodale, 61 Id. 404; Howell y. Tripp, Id. 428; Garville y. Additon, 62 Id. 461 ; Ford v. Clough, 8 Id. 342; Judkins v. Reed, 48 Id. 386; Hlsemore v. Longfellow, 76 Id. 130; Small y. Orne, 79 Id. 82; Warren v. Kelley, 80 Id. 531; Chase v. Ingalls, 97 Mass. 529 ; Twitchell v. Shaw, 10 Cush. 46; Wilmarth v. Burt, 7 Met. 256 ; Donahue y. Shed, 8 Met. 326; Fisher y. McGirr, 1 Gray, 45 ; Clark v. May, 2 Gray, 410.
    ■Chattels in the custody of the law can not, at common law, be replevied : Illsley v. Stubbs, 5 Mass. 283 ; Thompson v. Button, 14 Johns. 84; Clark v. Skinner, 20 Johns. 471: Hall v. Tuttle, 
      2 Wend. 476 ;■ Gardner v. Campbell,15 Johns. 401; Musgrav v. Hall, 40 Maine, 499.
    Nor by statute: Laws of 1821, c. 80, § 6; Hinds v. Allen, 55 Maine, 116 : Stringer v. Coombs, 62 Id. 165.
    Officer serving the writ violated its express commands. Writ should be dismissed. The case shows the chattels had been taken and detained upon a warrant of distress, as the plaintiff’s property.
    All the proceedings, ending with the issuing of the warrant of distress, are regular and legal in form and substance : Woodman v. Somerset, 25 Maine, 301; Sumner v. Co. Com. 37 Id. 123 ; Waterville v. Barton, 64 Id. 323 : Chapman v. Co. Com. 79 Id. 269; Ipswich v. Petitioners, 24 Pick. 345.
    Defendant entitled to a return: E. S., c. 96, § § 11, 12; Moulton v. Bird, 31 Maine, 298 ; Greeley v. Currier, 39 Id. 516 ; Bath v. Miller, 53 Id. 316.
   Virgin, J.

This is an action of replevin. The defendant sets up a justification of the taking as a deputy sheriff, by virtue of a warrant of distress, issued on an alleged judgment rendered by the court of county commissioners, in favor of one Connor, against "the inhabitants of Detroit,” of Avhich this plaintiff is one.

The plaintiff challenges the justification under the warrant for the alleged reason that it does not disclose the jurisdiction of the commissioners.

A warrant of distress in due form issued by a court of county commissioners, like the final process of other inferior tribunals, affords per se full protection to the officer serving it, Whenever it appears on its face that the court had jurisdiction of the subject matter and no want of authority in other respects appears thereon. Gurney v. Tufts, 37 Maine, 130, 133; Gray v. Kimball, 42 Maine, 299, 307; Nowell v. Tripp, 61 Maine, 436; Elsemore v. Longfellow, 76 Maine, 128; Winchester v. Everett, 80 Maine, 535, 537; Chase v. Ingalls, 97 Mass. 529.

The legislature has prescribed the form of several mesne and final processes, civil and criminal (St. 1821, c. 63, E. S., c. 27), but a warrant of distress is not found among them. Commissioners bave general authority to enforce, by such warrants, judgments legally rendered by them, (E. 8., e. 78, § 18,) and express authority to issue them against unsuccessful petitioners under E. 8., c. 18, § 3 ; and specific power, by such process, to collect from a town the regularly allowed amount of expenditures and expenses of a duly appointed agent in opening and making passable a highway, which the town itself was bound by law but neglected to build. R. S., c. 18, § 37.

The cases in which it is issuable arc few; and if issued in cases not authorized, it is invalid. The one in hand discloses on its face no intimation of the subject matter of the judgment on which it was issued and which it was intended to enforce. For aught that appears in the warrant itself, the judgment may have' been rendered upon a special contract, a tort or some other-cause entirely foreign to the jurisdiction of such a court. Under-the rule of law above mentioned, therefore, as the warrant on its face fails to show that the commissioners had jurisdiction of’ the subject matter of the judgment, it alone can not be held !()■ justify the defendant’s taking of the plaintiff’s property.

If, however, the commissioners had jurisdiction in fact and the record of the judgment, on which it was issued, so shows, then the defendant -was justified, unless, he transcended his authority in executing it,— of which there is no suggestion.

The judgment also is attacked upon the ground of want of jurisdiction,— that the hearing upon the petition for the appointment of the agent, -whose account of expenditures and expenses is the subject matter of the judgment, should have been had at the shire town of Skowhegan, and not in Pittsfield, one of the towns in which a part of the located bridge is situated.

The petition was in due form and was duly filed at the "annual session” of March, 1888, in Skowhegan; whereupon legal notice thereon, so far at least as time is concerned,' was duly ordered and subsequently served. Roth towns appeared by their respective counsel, when the town of Detroit objected, and now urges the objection, that the court had no legal authority to have the hearing in Pittsfield, in the immediate vicinity of the location, but in the shire town of Skowhegan only. "Annual sessions,” by x-eason of the positive requireixxoixts of the statute, must be held in the shire towxx, (It. S., c. 78, § 6,) -except when a maligxxaixt ixxfectious distexxxper prevails there. It. S., c. 14, § 11. But hearings oix petitioxxs for layiixg out, altering or discoixtixxuiixg ways are required to take place at the place of meeting fixed at the discretion of the commissioner's, or at a place ixx the vicixxity. K..S.,c.l8,§§2 and 4. While the petition for the appointment of aix agent to build a legally located way, which the town liable has neglected to opexx, is a xxew process axxd the fouxxdatioxx of a judgment which does xxot become a part of the recorded proceedings of the locatioxx, xxcvex*theless it is a subscquexxt stage of the saxxxe subject matter, being oxxe of the modes of executing the decisioxx of the coxnmissioixers. When the petition for location was before them, the statute required of them a persoxxal view, ixx order that they might thereby acquire a fuill knowledge of the íxature and situatioxx of the premises.-; and a hearing oix its merits ixx the vicixxity for the obvious accommodation and coxxvexxiexxce of all the parties axxd persons 'interested, and thereby save the unxxecessary expexxse axxd trouble of traveling to axxd from the shire towxx. Like reasons with many others, which readily suggest themselves ixx coxxnection with the coxxstructioxx of a bx’idge across a x-iver forming the boundary lixxe betweexx towxxs, woxxld seexn to render essential a view and hearing at or xxear the locus. The xnere duty of fixing the tixxxe, whexx the bridge and its approaches shall be completed involves the careful consideration &f nunxerous facts and circumstances of which a view would afford the best possible evidexxce, supplemexxted by the knowledge of residents thereon as to the nature of the bed axxd the actioxx of the current in high and low water. At such a place all could be bear'd, accommodated axxd coxxvexxed, axxd at the least expense practicable and noire injured.

It is ux’ged, however, that while the statute authorizes a hearing in the vicixxity on a petitioxx for the location, it does xxot on the petitioxx for the appoixxtmexxt of aix agent. True, there is no express statutory authority therefor. Neither is there any statutory provision affirmatively authorizing commissioners to hold any sessions even in the shire town, on any days other than the three designated for their annual sessions. No adjourned sessions are mentioned in the statute, although when only one of the commissioners is present, "he may adjourn to a convenient time and place.” E. S., c. 78, § 8. But so long as there is no statute prohibiting the court from adjourning from time to time, and holding adjourned sessions to accommodate the business of the people of the county, we have no doubt they have the inherent right to do so. Moreover it has been the universal custom and practice, especially in the more populous counties, to keep the regular sessions ojien by adjournments; and petitions and applications for their action have always been considered as entered at a "regular session,” whenever they were presented at a session held by adjournment from a regular session. Parsonsfield v. Lord, 23 Maine, 515; Harkness v. Co. Com. 26 Maine, 353; Waterville v. Co. Com. 59 Maine, 80; Bethel v. Co. Com. 60 Maine, 535. And agents may be appointed at an adjourned term, because, says Sueplet, C. J., "the statute does not require that commissioners should act upon such proceedings at the times prescribed by law.” Sumner v. Co. Com. 37 Maine, 112.

M e are of opinion, therefore, that in the absence of any statutory prohibition, the commissioners had discretionary power, on proper notice to the parties, to have the hearing in the vicinity of the locus, and acted wisely in thus ordering it. The place was more convenient for all concerned than the shire town; much expense saved and no one could possibly be prejudiced thereby; and no one has attempted to impugn the wisdom of the appointment.

From that point forward, the record show's a careful compliance with the statutory provisions regulating such proceedings and no objection lias been made thereto.

If the record does not show' the healing to have been held at an adjourned session, it was such a session in fact, and the county commissioners have full authority over their record, and can, at any session, correct their record to accord with-the facts.

Judgment for the defendant. Property to be returned. Damages to be settled at nisi prius.

Peters, C. J., Walton, Libbey, Haskell and Wi-iitehouse,“ 'JJ., concurred. ■  