57 N.H. 610 | N.H. | 1876
Lead Opinion
FROM COOS CIRCUIT COURT.
Upon being arrested, the defendant procured bail in the manner prescribed by Gen. Stats., ch. 206, sec. 13 — that is to say, special bail — in accordance with the practice in this state. See Chadbourn v. The Lancaster Bank,
The object of such bail is, to secure the appearance and attendance of the defendant in court — Norton v. Danvers, 7 Term 375 Lewis v. Brackenridge, 1 Blackf. 115; and the contract of the defendant and his sureties, or bail, as indicated by the long established practice in this state, and regulated by Gen. Stats., chs. 206, 223, was formerly expressed in the condition of the bond given to the sheriff upon the arrest of the principal, it being in substance that the defendant shall appear to answer to the action — shall satisfy the plaintiff's judgment, or shall surrender his body to be taken in execution, or that the bail shall pay the debt. Hampton v. Dunklee,
In this manner the bail become sureties for the appearance of their principal in court, and all the purposes of bail above and bail below, technically speaking, are answered and fulfilled. See Bouv. Law Dic., tit. Bail.
As by the terms of this contract the bail become sureties for the appearance of their principal, so the principal himself agrees to appear at the return day of the writ, unless this obligation shall be sooner discharged by due course of law.
By the prescribed form of a writ of capias — Gen. Stats., ch. 203, sec. 15 — the officer is commanded to arrest the body of the defendant, or to attach his goods or estate, and summon him to appear at court. This form is called a capias and attachment. Although by the terms of this precept the officer is directed to summon the defendant, yet no writ of summons, in practice, is given to the defendant, nor is it required by law, — the writ of summons in the form prescribed by law being required only in the case where the defendant's goods or estate are attached, in which case, the alternative requirement of the writ of summons and attachment having been fulfilled, the process, so far as it is a capias, is functus officio. And the reason why the writ of summons is not required to be served, where bail is given to the sheriff, is because, by the very act of giving bail, the defendant has acknowledged notice, and agreed to appear in court at the return day.
But the defendant, being arrested, may require the officer making the *614
arrest to carry him before two justices, one of whom shall be of the quorum, and, upon certain prescribed conditions, these justices may discharge him from arrest. In such a case, the defendant not having given bail, the service by arrest is defeated and avoided by the discharge, and the defendant is under no obligation to appear at court; and the court has no jurisdiction of the cause, unless a new and different service is made, after the discharge, as may properly then be done by the unexhausted alternative command of the precept, to attach the defendant's property and summon him to appear in court. Chadbourn v. The Bank, before cited; Wheeler v. Barry,
In the case before us, the defendant, being arrested, gave bail in the usual way, and made no effort to defeat the service of the writ. He submitted to it and came into court by his attorneys, and then moved that he and his bail be discharged upon the ground that he did not conceal his property nor intend to leave the state; and this motion was granted. The effect of this was, that he was discharged from arrest, and his bail was discharged from the obligation which the bail had assumed. But the defendant was then properly in court and subject to its jurisdiction.
In this state, the precise contract which is implied by the act of giving bail is not now prescribed by statute. Formerly it was literally defined. By the statute of February 15, 1791, entitled "An act regulating bail in civil causes," it was expressed as an obligation "for the appearance of the party to answer the suit, and abide the order or judgment of the court that shall be given thereon." N.H. Laws, ed. of 1792, p. 99.
This obligation, as I have before remarked, answers the purpose of bail above and bail below; that is, the sureties not only bind themselves either to satisfy the plaintiff, his debt and costs, or to surrender the defendant into custody, provided judgment be against him and he fail to do so; but, also, they bind themselves to the sheriff to secure the defendant's appearance on the return day of the writ, to answer to the action and abide the order of court. 3 Bouv. Inst. 195-197.
The obligation or contract of bail prescribed by statute in 1791 it is presumed has never been abrogated or changed in this state. In Pierce v. Reed,
And now, by statute (Gen. Stats., ch. 206, sec. 13), it is enacted that "When any person is arrested on mesne process, he shall be committed to jail, unless he procures one or more persons of sufficient ability, to *615 the satisfaction of the officer, to become his bail, by indorsing their names or signatures as bail on the back of the writ."
But bail now means just what it meant in 1791 — security for the defendant's appearance; and when the defendant has appeared in court, whether his bail remain liable or become discharged, he is there, subject to the order of the court; and no discharge of the defendant from arrest, or of his bail from their liability, shall discharge the debt. Gen. Stats., ch. 206, sec. 11.
The defendant, being thus in court, moved to dismiss the action "because the writ was never legally served upon him." And upon this motion the defendant offered to prove that he was not legally liable to arrest at the time he was arrested. The court excluded the evidence, and the defendant excepted. But the case finds that the plaintiff made the usual affidavit for the arrest of the defendant on the back of the writ, and the officer's return showed that the writ was served by arresting the body of the defendant and taking bail.
No defect in the service is pointed out, and it is not suggested upon what ground the defendant was not legally liable to arrest.
"Where the defect is the want of legal service of the writ, and such defect is apparent on the record, the court, on motion, if seasonably made, will generally quash the proceeding."
"If the process be defective in point of form, or its direction, teste, or return, or the attorney's name be not indorsed upon it, the defendant may move to set aside the proceeding."
But, "where the defect is not apparent upon the record, the court will not take notice of it without plea, even upon an agreed statement of facts; but if the defect be a substantial one, is apparent upon the record, and cannot be cured by amendment, and is seasonably brought to the notice of the court by motion, the proceeding will ordinarily be dismissed." Crawford v. Crawford,
The failure of the party to obtain the dismissal of the action in such a case will not, of course, preclude him from any remedy he may have by his action for damages against the sheriff or the plaintiff, if he has in fact been illegally arrested.
In several jurisdictions it has been held that giving bail is equivalent to an appearance in court and a submission to the jurisdiction. Thus, a defendant, being arrested upon the affidavit required by statute in Michigan, was brought into court, where, without pleading, he gave bail, and obtained an adjournment of the cause. On the adjourned day he moved to set aside the proceedings because of irregularity in the arrest. It was held that after an appearance to the action has been perfected by giving bail, it is too late to object to the regularity of the proceedings, or to deny the sufficiency or the truthfulness of the affidavit. Stewart v. Hill,
So, also, in New York, it has been decided that when a person not liable to arrest puts in bail, he waives his privilege, and cannot object that the affidavit on which the order of arrest was founded was *616 insufficient, unless fraud is shown. Stewart v. Howard, 15 Barb. 26; Wright v. Jeffrey, 5 Cow. 15.
"The affidavit to hold to bail," it is said, "is a component part of the process, used for the purpose of bringing the defendant into court. Whenever the defendant regularly appears to the action, or voluntarily does an act adopting the process, the object is then accomplished for which the affidavit is made and the writ issued, and no objection can afterward be made to the validity of the one or the other." Note to Lewis v. Brackenridge, before cited; Norton v. Danvers, before cited; Chapman v. Snow, 1 Bos. Pul. 131; Jones v. Price, 1 East 81, D'Argent v. Vivant, 1 East 330.
In the case at bar, the defendant voluntarily gave bail, and thus recognized, and submitted to that form of service and summons into court. He did not go there upon compulsion. He had the statutory permission and right to go before two justices, and there obtain his discharge from arrest if he was illegally detained.
In Brown v. Kelley,
But in Dale v. Radcliffe, 25 Barb. 333, it was held that where the defendant, on being arrested, offered bail to the plaintiff's attorney, which was accepted, and thereby procured his discharge from custody, this was an act on the part of the defendant which assumed that it was proper to require bail of him, and amounted to a waiver of any objection to having been held to bail.
Upon all the considerations thus expressed, I am of the opinion the defendant's exception should be overruled.
SMITH, J., concurred.
Concurrence Opinion
By Gen. Stats., ch. 206, sec. 13, "When any person is arrested on mesne process, he shall be committed to jail, unless he procures one or more persons of sufficient ability, to the satisfaction of the officer, to become his bail by endorsing their names or signatures as bail on the back of the writ."
In this case, the officer's return showed that the writ was served by arresting the body of the defendant, and taking bail. We must understand that the writ was that which in the General Statutes is called capias and attachment. By the writ, the officer is ordered to arrest the body of the defendant, or to attach his goods and estate, and summon him, c. By Gen. Stats., ch. 206, sec. 13, "When any person is arrested on mesne process, he shall be committed to jail unless he procures one *617 or more persons of sufficient ability, to the satisfaction of the officer, to become his bail by endorsing their names or signatures as bail on the back of the writ." By the precept of the writ he is to arrest the body and make return of the writ, with his doings therein; and, by the statute, having arrested the defendant, he is to commit him to jail, unless he procures bail. It follows that in this case, in which the return shows that the defendant was arrested and held to bail, and the facts duly returned, the process was duly served.
By Gen Stats., ch. 207, sec. 1, "If any defendant, on whom process has been duly served, neglects to appear at the court to which the same is returned, his default shall be recorded, and judgment shall be rendered against him for such damages as upon inquiry the plaintiff appears to have sustained."
The defendant in fact did not appear. Counsel had leave on his behalf to move for his discharge, and that of his bail, but with the express reservation that they did not appear so as to submit themselves to the jurisdiction of the court; — in other words, he did not appear, and was properly defaulted.
The case, therefore, comes exactly within the statute. Is there anything apparent from the case by which this result is prevented? I understand the position of counsel to be, that the discharge on motion shows that the defendant was not liable to arrest, and that service made in that way is no service, and therefore there has been no due service of process.
I do not so understand the statute, which expressly authorizes the arrest if a proper affidavit be indorsed on the writ. The arrest being legal, carries with it all the consequences of a legal arrest, excepting in so far as the statute modifies it. The statute modifies the arrest to this extent, that the defendant may at the return term of the writ move the court to be discharged, or that his bail or sureties may be discharged; and the court, upon satisfactory evidence that the defendant does not conceal his property, and does not intend to leave the state, may order such discharge.
But the statute expressly provides — Gen. Stats., ch. 206, sec. 11 — that "No such discharge, nor any discharge of a person arrested or imprisoned on execution, shall discharge the debt or judgment upon which the execution issued."
It should be observed that the statute speaks in the present tense. The defendant is to be discharged, not if it is made to appear that he did not at the time the arrest was made conceal his property, and was not then about to leave the state, but it is if it shall be made to appear that he does not conceal his property, and is not about to leave the state. So, when the execution issues, the affidavit is still in the present tense, and the defendant cannot be taken on execution, unless he is at that time concealing his property, c. The discharge, then, by the court does not show that he was not liable to arrest at the time he was arrested, but that he is not at the time of his discharge liable to be longer detained. *618
So, by section 12, "In any case when no sufficient attachment has been made, and there is no sufficient bail, the court or any justice thereof, upon motion and satisfactory evidence that the defendant intends to leave the state, may order a capias to issue, on which the defendant may be arrested and held to bail as on an original writ." Of course it would seem to follow, that if the defendant do not furnish bail be must be committed.
It was seriously contended soon after the passage of this law that the whole proceeding depended upon the facts existing at the commencement of the action, and it was contended that, such being the case, no affidavit need be put upon an execution issued where there had been an affidavit upon the writ; but the court held otherwise. Kidder v. Farrar,
It being expressly enacted that after due service of process, and return of the same to the court, the defendant, if he do not appear, shall be defaulted, — and in this case, the defendant not having appeared, — the default was rightly ordered.
Exceptions overruled.
