Hutchins v. Edson

1 N.H. 139 | Superior Court of New Hampshire | 1817

Per curiam.

If the execution upon which B lake was in custody was void, the defendant is not liable for the escape: but if it was only voidable for irregularity, he must be adjudged answerable. Cro. Eliz. im. — 2 Williams' Saunders 101, note 2. — 2 Salkeld 700. — 1 Salkeld 273. — 11 John. 133, Ray & al. vs. Hodgeboom. — 13 John. 378, Scott vs. Shaw. — 13 John. 529, Hinman vs. Brees. The question then is, was the execution on which Blake was in custody, void ? We are clearly of opinion that it was. The eonsti-tution of this state declares, that “ all writs, issuing out of •“ the clerk’s office in any of the courts of law, shall be in “ the name of the state of New-Hampshire,-saA shall be “ under the seal of the court whence they issue and the fifteenth article in our bill of rights declares, that “ no sub- “ ject shall be arrested, imprisoned, &c., but by the judg- “ ment of his peers, or the law of the land.” “ The law of 11 the land” here means process warranted by law. But a writ not under seal is not process warranted by law. Even an act of the legislature, directing our courts to issue writs without seal, would be repugnant to the constitution, and void. The constitution in our opinion has rendered a seal essential to the validity of all our writs ; and no officer can justify any thing done under a writ of execution not under seal. It is no better warrant for an arrest than a piece of blank paper. As the defendant, therefore, could not legally detain Blake, he is not answerable for his escape, and there must be Judgment for the defendant.