The opinion of the court was delivered by
Pierpoint, Ch. J.The defendant offered to show by parol his proceedings under his tax-warrant. Plaintiff objected, and claimed that the proceedings of defendant about collecting the tax, should be shown by the return made by defendant upon the copy of his warrant left with the jailor. The evidence offered was received by the court at first, subject to objection. After the evidence was in on this subject on both sides, the court changed its ruling, and decided as claimed by plaintiff, that is, that defendant must show his acts under the warrant by his certificate or return on the copy *410left. This ruling was correct. The copy and certificate being in, and the certificate being a full return, it was prima facie evidence in favor of the defendant of the facts therein stated, but not conclusive as against the plaintiff; he was at liberty to controvert it by his proof, and then the defendant might meet such proof by evidence to rebut it. The evidence on both sides was in the case in fact; and it was in view of such evidence, that the plaintiff framed his request to charge on the subject.
The principal question involved in this case, arises upon the charge of the court below in respect to the time within which an officer who commits a prisoner to jail is required by law to leave a copy of the warrant or process upon which the commitment is made, with a certificate of his doings thereon, with the jailor in whose charge the prisoner is placed.
In c. 84, Gen. Sts., relating to the collection of taxes, it is provided in s. 13, that “ for want of goods or chattels whereon to make distress, the constable may take the body of such’ delinquent, and commit him to the common jail until such tax and costs be paid.” Section 14. “ When any person shall be committed agreeably'to the preceding section, the constable shall leave with the keeper of the jail an attested copy of his warrant, and shall certify his doings thereon in relation to such delinquent.”
By this statute it is made the duty of the constable, when he commits the delinquent tax-payer to jail, to leave with the jailor a copy of the warrant on which the commitment is made, together with the certificate, <fcc. The propriety of this requirement is obvious, when it is considered that such copy is the only authority that the jailor has for detaining the prisoner. Without it, he might discharge him at once. It is, also, the only source from which the prisoner can obtain authoritative information as to the cause of his detention, and what he must do to obtain his release, by payment or otherwise. Still, we do not think that a fair construction of the statute requires that the act of committing the prisoner to the jail and the leaving of the copy, must necessarily be simultaneous. The constable cannot know until the commitment is actually made, that the delinquent will not pay the tax; hence the constable should have sufficient time to make a copy of *411bis warrant and certificate, and give the same to the jailor after he has placed the delinquent in the jail. In determining what that time shall be, it must be kept in mind that the law requires that the act shall be done then — as soon as a man of ordinary business capacity, exercising due diligence and despatch, can perform the labor required to do the act. It is not a question as to what men of ordinary capacity and diligence would do under like circumstances, or what they would do in the transaction of their own business of equal importance, but a question as to how much time is reasonably necessary for a man of ordinary capacity and diligence to perform the labor in, he setting himself about it at once, and using reasonable diligence in the performance of it.
We think the County Court erred in not presenting the subject to the jury clearly and explicitly in this light, but in allowing the jury to judge of the question in view of what men of ordinary capacity and diligence would probably do under like circuin-tances, rather than in view of what the law requires to be done. If the fact were fully established to the satisfaction of the jury, that every man in the community would have doné just, as the defendant did in this case, under the same circumstances, it would be no defence, unless the requirements of the law were complied with. The charge in this respect was well calculated to mislead the jury, and in view of the undisputed facts, probably did so. We think that upon the defendant’s own testimony, the court would have been fully justified in telling the jury that in its judgment, as a matter of fact, the defendant did not leave a copy with the jailor within that reasonable time that the law allows Judging from the copy of the warrant and certificate furnished us, and in view of the circumstances given by the defendant, thirty minutes would probably have been ample time within which to do all that the law required of the defendant. He did not perform it until the next day, some fifteen hours after the incarceration of the plaintiff, he being held in jail during that period without authority.
Other questions were discussed in this court, some of which do not fairly arise upon the exceptions; others were properly disposed of by the court, especially the one in relation to damages, in which we think the ruling was correct; but as the point upon *412which we have turned the case seems to be the vital one, the others are not discussed.
The judgment of the Comity Court is reversed, and the cause remanded.