Gilbert v. Rider

agreed — That a justice of the peace has, by law, a right to issue his execution through the state, if he finds it necessary to give it effect; and it is at his discretion. Should it appear that an execution was directed to a distant officer, merely to vex and oppress the debtor, it might subject the authority who issued it to damages; but the officer is bound by his precept, unless it be void on the face of it; — he cannot look to the circumstances which induced the direction. i>

As to the property tendered ■ — --it was not apparently sufficient to discharge the debt and incidental cost; the officer was not, therefore, bound to receive it. It is undoubtedly the duty of an officer, after having taken the body, to allow the debtor a reasonable opportunity to produce estate, which appears to have been done in the present case.

*183As to tlie road — tbe officer is not always bound to take tbe most direct road to prison; be may apprehend a rescue, and it is at bis discretion wbat route to take, so tbat be does not go a great way round about, in order to harass and oppress tbe debtor. Here tbe deviation was small (if any) and reasonably accounted for.

dissenting. The taking of tbe body does- not discharge tbe debt, even if tbe debtor dies in goal; but by the imprisonment, tbe law has only in contemplation to compel the debtor to do justice to bis creditor so far as be is capable. All laws which affect tbe liberty of the subject, ought to receive tbe most humane and liberal construction. Let us, then, examine tbe circumstances of the present case, and compare these principles, which cannot be controverted:— Here was an execution for tbe trifling sum of twenty-three shillings. (If it had been to a very great amount, where the creditor was in hazard of losing everything, the reason and nature of the case would be different.) This execution is given to an officer in a different town and county from the debtor’s residence; by which he is taken on the first notice absent from tome. "What does he do? He delivers to the officer all the property he has in that situation. This was, probably, enough to have discharged the debt, but it does not liberate him; he is compelled to go: — Here it is said the • officer must run no hazard.— I answer, he must act reasonably; in the present case he would have been perfectly safe, to have accepted the estate offered; he could not determine with certainty, that the value of £20, in property, would produce twenty shillings, when disposed of at auction, as the law directs; therefore, he must be governed by the reason*184able appearance. That would bave justified him in this case.

Mr. Swift, then moved in arrest of judgment; because one of the jurors who tried the cause had not taken the oath of fidelity to this state; which fact was unknown to the defendant at the time of trial.

He supposed the office of juror within the statute, which enacts — “ That all members of the general assembly, and-all officers, civil and military, and freemen of this state, shall take the oath of fidelity to this state> prescribed by law: And that no person shall execute any office, civil or military, nor vote in any town, society, or other public meeting appointed by law, nor plead in any court (except in his own case) nor shall any male person act as executor or administrator, or guardian to any minor, until he shall have taken the oath aforesaid.”

From the general and particular terms of the statute, he urged — That the legislature must have intended to include jurors; and that such qualification being required by law, no verdict can be good where it is wanting. But,

By the whole Court. If to sit as a juror, is to execute an office, within the meaning of the statute (which we apprehend not to be the case) yet as the juror was not challenged, though the fact might have been known by inquiry of him, or otherwise, the exception being then waived, it comes too late after verdict. The exception does not go to the partiality of the juror, nor affect the obligation he was under to find a verdict according to truth; and it is not stronger than the want of a freehold, which, though a gi’ound of challenge, hath been repeatedly adjudged insufficient after verdict.