
    Hollister vs. Johnson.
    It is the duty of a constable to whom an execution is delivered, in all cases, to search for property before he takes the body of the defendant.
    If, without searching or inquiring for property, he immediately, upon receiving theexecution, arrests the defendants, he does it at his peril; and if it be shewn that the defendant has property in his open and visible possession which was subject to the execution, and might with reasonable diligence have been found by the officer, he is liable to an action for the arrest.
    
      It seems that trespass in such a case might be sustained.
    It is erroneous in a judge to instruct a jury that they may indulge a presumption not warranted by the evidence disclosed in the case.
    A constable has in all cases a reasonable time to search for property before he is bound to arrest the defendant in an execution ; and if he acts in good faith, he will incur no responsibility in omitting to take the body until such search can be made. If the defendant declares he has no property, the arrest may be' made immediately.
    This was an action for false imprisonment.
    The defendant, as a constable, committee the plaintiff to jail on a justice’s execution for $41,79,. where he remained five days. The plaintiff proved that, at the time of his commitment, he was a house-keeper, having a family, in the county where the judgment was rendered, and occupied a farm at a rent of $60 per annum, of which he had been in possession for three years; that he was possessed of two colts worth $40, a waggon worth $25, and household furniture of considerable value over and above what by law was exempted from execution. The suit in which the execution issued was commenced by warrant, which was served on the same day that the execution issued. At the time of the service of the warrant, the plaintiff told the defendant he had property enough to pay all his debts, but did not point out any property to the defendant. He further told him that he inten(jec[ to pay ys d^ts before he went away, and he requested the defendant to let him be until Monday, the day on whioh the arrest took place being Saturday. This the defendant declined, and carried him before the justice who issued the warrant, a distance of ten miles from the residence of the plaintiff. When brought before the justice, the plaintiff confessed judgment and consented to the issuing of the execution, and said that he had before offered to turn out property, but now would do nothing about it. Whilst the justice was making out the execution, the plaintiff escaped. The defendant in this cause (the constable) and the plaintiff in the execution pursued and arrested him at the distance of half a mile from the justice’s office. It was late on Saturday night when the execution issued, near bed time; the justice’s office was about 12 miles south from the jail, and the plaintiff resided six miles east of the jail. The plaintiff in the execution testified that the plaintiff in this ''suit was reputed insolvent; that he was informed he was about to clear out for the west; and considering his debt in danger, he swore out the warrant. It appeared that the farm on which the plaintiff in this suit resided laid on the line of the state of Vermont, and that part of it was in that state, and that after his discharge from the execution he did move to the west.
    The defendant insisted that the action should have been case and not trespass, and on that ground moved for a non-suit. The circuit judge reserved the question, and charged the jury that if it was doubtful whether there was property sufficient to satisfy the execution, the defendant was justified in taking the body of the plaintiff; that to render the defendant liable in this action, there must have been a reasonable probability of there being property enough to satisfy the execution ; that the circumstance of the plaintiff’s being about to go to the west, and the property which he offered to turn out not being pointed out, went far in justification of the defendant ; that the fact of the plaintiff’s having property was not conclusive evidence that the execution might be satisfied, for it appeared that the premises, were leased, and it might reasonably be presumed that the landlord had a claim for rent, which might have defeated the execution: and that if the defendant had not taken the body of the plaintiff, and it had turned out that he had not sufficient property to satisfy the execution, the defendant would have been liable. -The plaintiff excepted to the charge, and the jury found a verdict for the defendant.
    
      J. Crary, for the plaintiff,
    cited 2 Johns. Cas. 50; 4 Cranch, 404.
    
      G. W. Jermain, for defendant,
    insisted that the declaration of the plaintiff that he would do nothing about turning out property in satisfaction of the judgment must be considered as a voluntary surrender of his person in execution, especially as the plaintiff did not require the defendant to proceed against his property. If, under circumstances like those disclosed by this case, the party is bound to seek satisfaction against the goods, the provision of the statute authorizing an execution to be issued on oath of danger, &c. would be useless.
   By the Court,

Sutherland, J.

It is the duty of the constable to whom an execution is delivered in alocases to search for property to satisfy it before he takes the person of the defendant. The form of the execution clearly indicates his duty in this respect; it commands him “ to levy the debt or damages and costs of the goods and chattels of the defendant, &c, and if no goods and chattels can be found, then to take the body of the defendant,” &c; (Laws of 1824, p. 286, § 14. Waterman’s Manual, 86.) His right to take the body depends upon the contingency of there being no property to be found. If, without searching or inquring for property, he immediately upon receiving the execution arrests the defendant, he does it at his peril; and if it is shewn that the defendant had property in his open and visible possession, which was subject to the execution, and might, with reasonable diligence, have been found by the officer, he is undoubtedly liable to an action for making the arrest. Whether the action should be case or trespass, it is not necessary to decide, as the point, though raised upon the trial, seems to have been abandoned upon the argument; though I see no substantial objection to an action of trespass in s'- >h a case. The ¡constable does not obey, but violates the authority under which he acts, if he makes an arrest without searching or inquiring for property. Whether there was property or not upon which a levy might have been made is matter in pais, to be shewn by evidence ; and whenever it is shewn, the authority for the arrest is disproved, and the constable is left without justification as a wilful trespasser.

The charge of the judge appears to me to have been wrong in two essential particulars: 1. In stating to the jury that it might reasonably be presumed that the landlord of the plaintiff had a claim or lien on the property which was shewn to have been in his possession for rent, which might have defeated the execution; and 2. In stating to them that if the defendant had not taken the body of the plaintiff, and it had turned out that he had not sufficient property to satisfy the execution, he (the defendant) would have been liable for the amount of the execution. Now, there is not a particle of evidence in the case upon the subject of rent, except the simple fact that the plaintiff lived on a farm for which he was to pay or had paid $60 per annum. No claim on the part of the landlord was shewn, nor any other circumstance from which an inference could be drawn that there was any rent in arrear; and unless such presumption exists in judgment of law in all cases between landlord and tenant, there was no foundation for it in this.

A constable has in all cases a reasonable time to search for property before he is bound to arrest the defendant in the execution; and if he acts in good faith, he will incur no responsibility in omitting to take the body until such search can he made. This necessarily follows from what has already been said as to the duty of the constable under the execution.

There may be cases in which no actuul search is necessary. Where the defendant in the execution declares that he has no property, he has no right to complain if the constable credits his assertion and proceeds accordingly. But that was not the ease here; the "plaintiff, when he was arrested upofi the warrant, informed the defendant that he had property enough to pay all his debts, and that he intended to pay them, and requested lr to delay the arrest or suspend proceedings until the following Monday, this being on Saturday ; but the-defendant having refused to do this, and having taken the plaintiff 12 or 14 miles from home, before the magistrate who issued the process, he then said that he had before offered to turn out property, but now he would do nothing about it. This, so far from authorizing the defendant to conclude that he had no property, was substantially an assertion that he had, but that he intended to leave the officer to do his duty in the ordinary way. Indeed, the plaintiff had no opportunity to thrn out property if he had been so inclined ; the execution did not issue till near bed time, as the witness expressed it, on Saturday night, and the plaintiff was then 12 or 14 miles from home, where his property was.

New trial granted.  