Hubbard v. Shaler, 2 Day 195

Hubbard v. Shaler

2 Day 195 | Conn. | 1805

By the Court

unanimously, the judgment was affirmed. Regarding the first question, The principle assumed by the counsel for the plaintiff in error was correct; but it proved the judgment to have been well founded. As to all the damages alleged, inquiry was competent;—inquiry was made ; and the Court gave the principal, interest, and costs, which they had an unquestionable right to do.

Respecting the second point, The law of Connecticut has its system relative to bail, and to imprisonment; systems entirely distinct ; both resting on statutes ; and (if there be some analogy) the most simple mode of ascertaining the latv relative to each, is, by an investigation of each without any embarrassment from the other. This is a question of practice ; and little light is derivable from the practice in Westminster-Hall. At the same time, it is a truth, that the practice in both countries is essentially the same.

*199By our law, if the body of the defendant is attached, he may be let to bail, and the sheriff must take bail, if it is sufficient. It then becomes the duty of the officer to return his writ, with an indorsement, mentioning, that he has taken bail for the defendant’s appearance. This return imposes an obligation on the plaintiff, if he would preserve his holt!, to demand special bail He is not obliged to make any oral inquiries, or to search for facts. The return is the only object at which he is to look. The condition of the bail bond is performed, if the defendant appears ; and this appearance consists in the acceptance of a plea. The plea, if accepted, waivers all right to special bail, or to an imprisonment of the defendant’s body. Of consequence, the plaintiff must see, that special bail is given, before he accepts a plea ; or that the defendant, (if delivered up) is committed to prison. When he is committed, he may plead by attorney, or personally ; and the words that he pleads in custody cannot be essential. The record gives a history of the proceedings; of his delivery up in court ; and of his commitment to gaol. So that the expression above mentioned in the defendant’s plea is always superfluous. After he is imprisoned, whatever may be the length of the litigation, the defendant must remain in prison until five days after final judgment; and then, if execution is not levied on him, he may be discharged.

If the defendant will not, or cannot, procure bail, it becomes the duty of the sheriff’ to apply to a justice for a mittimus, (i) which, declaring the cause of commitment, directs the gaoler to receive and keep the prisoner until discharged according to law. What this law is, appears from the next statute. (j) The prisoner is not to be /widen longer than five days after the rising of the court, in which final judgment shall be rendered. Though expressed negatively, yet the construction ever has been, that the de-fendent is to be holden until five days after th« judgment. *200In the mean time, the plaintiff, on inspecting the record# knows, that the defendant is secure, and that he has no act to do to keep him ⅛ prison. He objects not to his pleading ; because the defendant has a right to plead, and that without bail. He opposes not his pleading by attorney ; for the prisoner has right to his attorney. On the whole, the plaintiff is only to take care, that within five days after final judgment his execution is in the hands of the sheriff, to be levied on his debtor. Thisis the construction of our statutes relating to this subject, and this the invariable practice.

Were it necessary to look further, some benefit would be derived from the analogy of the law relative to bail. But the true point of analogy seems to have been misapprehended, by the plaintiff in error. It is as little proper to say, that, when a person is committed to prison, the Court is his bail, as that, when persons are let to bail, their bail is their prison. This isa method, by fanciful allusion, to embarrass a plain subject. As improper is the assertion that, because the reception of a plea is the waiver of special bail, so, the reception of a plea is the waiver of imprisonment. This, if any thing, ⅛ analogical reasoning. But there is no analogy between the condition of bail to the sheriff, and of imprisonment; and, therefore, the argument fails. There is, however, a point, at which the analogy commences. It is when the person bailed has been delivered up in court, and is committed to gaol; and when the person, who could not procure bail, is committed by the justice. The commitments are in the same language ; for the same cause ; with the same object. The law, then, must be similar, in both instances. In commitment by the court, the imprisonment, it is agreed, must be permanent, until after the rising of the court ; the same must be the imprisonment for want of bail to the action.

Stat. p. 34. edit. 1796.

i~ P. 35.