51 A. 624 | N.H. | 1902
"Parties and their witnesses are privileged from arrest while going to, attending upon, and returning from the trial of an action. A person who procures an arrest in violation of the privilege is guilty of contempt of court; and the action in which the arrest is made is subject to abatement for want of proper service." Ela v. Ela,
The plaintiff does not deny that the defendant was entitled to the privilege at the time of his arrest, but says that he waived it by giving bail. Among the authorities which the plaintiff relies on, in support of this position, are the following: Brown v. Getchell,
There are cases in this state having a bearing upon the question, the earliest of which is Hubbard v. Sanborn,
Woods v. Davis,
Jacobs v. Stevens,
A hasty examination of these opinions might lead a person to regard the case as an authority for the plaintiff in this action, but a careful examination shows that there is a wide difference in the cases. The real point decided was, that a defect in the service of a writ, not apparent upon the record, will not be considered upon a motion to dismiss, and so the excluded evidence was irrelevant to any question that was before the court. The case was cited by Judge Foster upon a question of this kind in Rogers v. Buchanan,
Blackstone says: "When the defendant is regularly arrested, he must either go to prison for safe custody, or put in special bail to the sheriff. For the intent of the arrest being only to compel an appearance in court at the return term of the writ, that purpose is equally answered, whether the sheriff detains his person, or takes sufficient security for his appearance, called bail (from the French word bailler, to deliver) because the defendant is bailed or delivered to his sureties, upon their giving security for his appearance; and is suffered to continue in their friendly custody instead of going to gaol. . . . Upon the return of the writ, or within four days after, the defendant must appear according to the exigency of the writ. The appearance is effected by putting in and justifying bail to the action; which is commonly called putting in bail above. . . . The bail above, or bail to the action, must be put in either in open court, or before one of the judges thereof; or else, in the country, before a commissioner. . . . These bail . . . must enter into a recognizance . . . whereby they do jointly and severally undertake, that if the defendant be condemned in the action, he shall pay the costs and condemnation or render himself a prisoner, or that they will pay it for him." 3 Bl. Corn. 290, 291. In this state the appearance of the defendant is effected in a different way; that is, by an entry upon the docket stating the fact of his appearance in person or by attorney. If he appears and answers to the action upon its merits and is defeated, bail here undoubtedly has the force of both bail below and bail above, at common law. But an appearance may be made for the sole purpose of objecting to the court's jurisdiction for want of legal service of the writ. Such an appearance is usually made by designating it as special. Wright v. Boynton,
Jacobs v. Stevens is also distinguishable from the present case in this important particular: The defendant and his bail were discharged for a cause that was in existence at the date of the discharge, but not necessarily at the date of the arrest; while in this case, the cause alleged by the defendant existed at the date of the arrest and rendered the arrest illegal.
To recapitulate the New Hampshire cases: Hubbard v. Sanborn comes very near being an authority in favor of the defendant; the remarks of the court in Woods v. Davis, quoted by the plaintiff, are dicta expressed doubtingly and without an examination of the authorities; Jacobs v. Stevens is widely distinguishable from the present case; State v. Buck is an authority that the privilege of a, witness is established to protect the administration of justice by removing an obstruction to the free and unrestricted attendance of witnesses at trials, and that its violation, being contempt of court, is punishable; and Ela v. Ela is an authority that such violation is cause for abating the action. Although the question has not been definitely decided, the first of these cases and the last two tend strongly to show that the giving of bail by a witness arrested in a civil action while entitled to the privilege is not, of itself, sufficient to constitute a waiver of the privilege. An arrest under such circumstances is illegal. The witness by giving bail acknowledges the fact of the arrest, but not its validity. He elects to be in the nominal custody of persons of his own selection, rather than in the actual custody of the sheriff or jailer, while the arrest continues in force. To protect the administration of justice, it is oftentimes necessary that he shall be released from actual custody *220 as soon as possible. There was evidently such necessity in this case. The release can usually be effected more conveniently, expeditiously, and surely by giving bail than in either of the other methods provided by law. It is apparent that the hearing before the referee in this case must have been more or less delayed and embarrassed if the defendant, instead of giving bail, had at, tempted to procure a discharge by applying to a justice of the court for a release, or for a writ of habeas corpus. P. S., c. 221, s. 12; Ib., c. 239. Relief in either of those ways would come too late to answer the demands of justice. Freedom to give bail without prejudice to the rights of the witness is as necessary to protect the administration of justice as is exemption from the service of process. The considerations which have established the latter privilege equally require the former. As was said in Hubbard v. Sanborn, a knowledge that the writ can be abated and the bail be thereby discharged "may facilitate the procurement of bail by persons illegally arrested." This knowledge will have a tendency to prevent the interruption and perhaps the defeat of trials, by enabling witnesses who have been illegally arrested to obtain bail when otherwise they would not be able to do so.
It is said in behalf of the plaintiff that the giving of bail without asserting the privilege ought to be regarded as a waiver of the privilege, because the plaintiff may rely upon the arrest as legal and so fail to avail himself of the opportunity to make other service of the writ after the privilege ceases, in case the defendant remains in the jurisdiction. This argument ignores the fact that the privilege was established to protect the administration of justice, and treats it as wholly a personal matter. It also assumes that it is the duty of the defendant, when about to be arrested, or at least before giving bail, to assert the illegality of the arrest and declare his purpose to avail himself of it to abate the action — an assumption that conflicts with the general rule that if a person deprives another of his liberty, he does it at his peril. If the plaintiff does not know of the facts which create the privilege, — of the defendant's attendance upon a court as a witness, for example, — and the defendant is aware of the plaintiff's ignorance, he may possibly waive the privilege by omitting to disclose the facts. But it is not necessary to decide that question, for it is not claimed that the plaintiff was ignorant of the reason why the defendant happened to be within the jurisdiction at the time of his arrest. Nor is it necessary to decide what would have been the plaintiff's rights under the circumstances as to making other service of the writ if the defendant had remained in the state after his exemption from arrest ceased, for it does not appear that such was the fact. It may be suggested, however, *221 that the plaintiff might be at liberty to discharge the defendant, arrest and release his bail, and then to make service of the writ anew. If it should turn out that the plaintiff was disabled from making another service, the disability would be attributable to the plaintiff's mistake and not to a defect in the law.
The weight of authority in other jurisdictions, the tendency of the decisions in this state, and the reasons bearing upon the question, all show that the giving of bail is not, of itself, a waiver of the privilege of exemption from arrest. By applying this and the other principles of law before mentioned, together with the provisions of sections 10 and 12, chapter 221, Public Statutes, to the facts reported, it follows that the defendant is entitled to be discharged from arrest, and his bail are entitled to be released; and the plea in abatement, having been seasonably filed (Rule of Court No. 11,
Case discharged.
WALKER, J. did not sit: the others concurred.