United States ex rel. Moore v. McNeily

¶11. False Arrest — Waiver—Admission of Identity.

¶2One J. M. brought an action on the bond of a United States marshal, for a breach of duty in arresting J. M. under a capias against L. M., issued *973upon an indictment against the latter. The márshal pleaded, among other things, that J. M. had entered into a, recognizance to answer the indictment, in which he admitted himself to he the person named therein, and also that J. M. had subsequently appeared, pleaded, and been tried and acquitted under the indictment, without disputing his identity. Meld, that the tort claimed as a breach of the marshal's duty could be waived, and J. M., by entering voluntarily into a recognizance such as was alleged, would be estopped afterwards to deny he was the person indicted.

¶32. Same — Dun ess.

¶4Meld, further, that such waiver must he voluntary, and that a replication to the plea of waiver, that the plaintiff was coerced into executing the recognizance by imprisonment or the threat thereof, was sufficient.

¶58. Same — Recoud of Trial — Of 'What Evidence.

¶6Meld, further, that the plea of apiiearance and trial under the Indictment was not supported by proof of a record showing only an indictment found against II. SI., and that “the defendant” appeared in court, was arraigned, pleaded to the indictment, was tried and acquitted; nor did the recognizance taken supply the defect, though included in the transcript of the record, since it properly formed no part of the record, but was matter in pais.

¶7In Error to the Circuit Court of the United States for the Southern District of Mississippi.

¶8This suit was brought in the circuit court of Hinds county, state of Mississippi, by the United States, suing for the use of John L. Moo-re, against John S. McNeily, United States marshal for the Southern district of Mississippi, and the sureties on Ms official bond, to recover damages for a breach or said bond, in that the said marshal, under an indictment found in the circuit court of the United States for the Southern district of Mississippi against L. U. L. Moo-re for a violation of the revenue laws of the United States, and a capias issued therein, falsely arrested the said John L. Moore at his home in Leake county, in said district, against the protest that he was not the person named .in and designated thereby, and did unlawfully, forcibly, and willfully take plaintiffs’ usee into custody, and force and compel him, by threats and menace, to proceed to Jackson, in said Southern district, the place appointed by law l'or the holding of said district court, and surrender himself to the said marshal upon the false pretense that said usee was the party intended to be indicted. And the plaintiff further avers that, being so brought to the said city of Jackson, he was thereafter, by said marshal, compelled to be and appear from time to time and term to term before the said district court of the United States, until the-day of November, 18ÍM, when he was discharged, and, in the interim, that the said John L. Moore, plaintiff’s usee, was unlawfully imprisoned by the said marshal, and was for a long time, to wit, 11 months, put to great expense and loss of time, and subjected to great shame, humiliation, anxiety, trouble, and distress of mind, as well as brought into disrepute among his neighbors, by reason and because of the false and unlawful arrest and imprisonment above mentioned.

¶9At the January term, 1895, the defendants filed a general demurrer to the declaration, and at the same term, by proper proceeding, removed the cause to the circuit court for the Southern district of Mississippi. At the May term of the circuit court for the Southern district of Mississippi, the demurrer was overruled, and thereupon three several pleas were filed. The first denied the breach of the bonds, and asserted that the marshal did take the body of, and arrest, the said L. L. L. Moo-re, as required by the capias. The second seemed to be a general denial of the facts stated in the declaration, charging that the person now calling himself John L. Moore was, in point of fact, the same identical party named and described, and intended by the grand jury to be named and described, in the indictment set forth in the declaration, and in the capias under which said arrest was made, and that the arrest was lawful, etc. The third plea sets forth, In detail: That the said John L. Moore, plaintiffs’ usee, appeared pursuant to the arrest, and in custody of the deputy marshal, before a United States commissioner, and there executed a recognizance as follows:

¶10*974“ ‘Be it remembered that on this 22nd day of November, A. D. 1893, before me, a commissioner duly appointed by the circuit court of the United States for the said Southern district of Mississippi, personally came Jño. L. Moore (indicted under name of L. L. L. Moore), as principal, and J. D. Moore and W. D. McMillan, as sureties, and jointly and severally acknowledged themselves to owe to the United States of America the sum of ?500, to be levied on their goods and chattels, lands and tenements, if default be made in the condition following, to wit: The condition of this recognizance is such that, if the said Jno. L. Moore shall personally appear before the district court of the United States, in and for the district aforesaid, at Jackson, Mississippi, on the first day of the next regular term thereof, then and there to answer the charge of having, on or about the-day of September, 1893, within said district, in violation of section-of the Revised Statutes of the United States, unlawfully engaged in the business of illicit distilling, and then and there abide the judgment of said court, and not depart without leave thereof, then this request to be void; otherwise, to remain in full force and virtue.

¶11“ ‘[Seal.] John L. Moore. his

¶12“ ‘[Seal.] J. D. X Moore. mark.

¶13“ ‘[Seal.] W. D. McMillan.’

¶14—“Which said recognizance was duly executed in conformity to law, and filed amongst the papers of said cause, constituting a part of the record thereof.”

¶15And that afterwards the said plaintiffs’ usee did again appear before the said commissioner, and execute a further recognizance for appearance as follows:

¶16“ ‘Be it remembered that on this 14th day of May, A. D. 1894, before me, a commissioner duly appointed by the circuit court of the United States ror the said Southern district of Mississippi, personally came D. L. L. Moore, principal, and Eli N. Moore, surety, and jointly and severally acknowledged themselves to owe the United States of America the sum of five hundred dollars, to be levied on their goods and chattels, lands and tenements, if default be made in the condition following, to wit: The condition of this recognizance is such that, if the said L. L. L. Moore shall personally appear before the district court of the United States, in and for the district aforesaid, at Jackson, on the 8th day of the regular term thereof, and then and there to answer the charge of having, on or about the-das' of September, 1893, within said district, in violation of section-of the Revised Statutes of the United States, unlawfully engaged in the business of illicit distilling, and then and there abide the judgment of the said court, and not depart, without leave thereof, then this recognizance to be void; otherwise, to remain in full force and virtue.

¶17“ ‘Jno. L. Moore.

¶18“‘E. N. Moore.’

¶19—“Which recognizance was duly executed, and was filed among the papers of said cause, and became a part of the record thereof.”

¶20That afterwards, to wit, on the 8th day of November, 1894, the said plaintiffs’ usee appeared in said court in the presence of the district attorney and the judge, in open court, and, a jury being impaneled, the said plaintiffs’ usee was'then and there arraigned on the said indictment by the name of L. L. L. Moore, and did then and there plead not guilty, and go to trial on the merits of said cause, the said trial resulting in a verdict of not guilty.

¶21Demurrers were filed to the foregoing pleas, which, upon hearing, were sustained as to the second plea, but overruled as to the first and third. And thereupon the plaintiffs took issue on the first plea, and replied to the third plea by admitting that, as therein charged, said John L. Moore executed the recognizances before the commissioner for his appearances, but charged that, at the time and place, he, said John L. Moore, protested that he was not the said L. L. L. Moore, and declined and refused to sign the said bonds otherwise than by his name John L. Moore, and was induced to sign and coerced to sign said bonds, under threat of imprisonment and actual imprisonment, as the condition for the restoration of his liberty, whereof he had been unlawfully deprived; the said marshal of the United States then and there pretending and *975claiming tlia.t said usee was U. L. L. Moore, and the party intended to be indicted, and the said United States commissioner then and there yielding to and being governed and controlled hy said contention. And tlie said plaintiffs further averred that it was not time, as alleged in said third plea, that tlie said John Ij. Moore was ever arraigned and tried as therein alleged; hut, on the contrary, no such proceedings were ever liad, nor was said John L. Moore ever arraigned, nor afforded opportunity to plead in any way, and the said cause was disposed of hy tlie district attorney, in the absence of, and without tlie knowledge of, said nsee, and by Instructing tlie jury to lind and return a verdict of “not guilty,” without arraignment or trial of any kind on the merits of tlie controversy, all of which was done to conclude plaintiffs’ usee from asserting his right to compensation and damages as in the declaration alleged.

¶22To the rejilication to the third plea the defendants demurred as insufficient, and as contradicting, by parol, the records of the court, and as being scandalous and impertinent, which demurrer was sustained, with leave to plaintiffs to reply further to said third plea; and thereupon a plea of nul tiel record was mitered to the third plea. Upon this last plea tlie cause was submitted to the court in advance of the trial of the cause on other issues joined, whereupon tlie court found that the third pica was true, and, in fact, that the said record does exist, and thereupon dismissed the defendants without, day. The plaintiff's sued out this writ of error, assigning errors as follows:

¶23“(1) The court erred in overruling the demurrer of the plaintiffs’ usee, etc., to the first and third pleas of tlie defendants. (2) The court erred in sustaining defendants’ demurrer to the replication of plaintiffs’ usee, etc., to defendants’ third plea. (8) The court erred in adjudging, upon tlie replication of mil tiel record to defendants’ third plea, that there was such record, and in nonsuiting the plaintiffs’ usee, etc., and rendering judgment that defendants go hence without day, etc. The record in tlie case of the United States v. U. Ij. L. Moore was not evidence establishing or tending to establish (he allegation of the plea, --■the recognizances were no part thereof, and were void and without effect on the plaintiffs’ demurrer.”

¶24W. L. Nugent, for plaintiffs in error.

¶25E. Mays, for defendants in error.

¶26Before FAEDEE and McCORMIOK, Circuit Judges, and BOAR-MAN, District Judge. ,