9 N.H. 197 | Superior Court of New Hampshire | 1838
We are of opinion that the instructions of the court to the jury were entirely correct. Certain individuals, in Massachusetts, who were creditors of the defendant, had made complaint, in that commonwealth, in substance, that the goods which they sold were obtained by him by false pretences, and not in the ordinary course of fair mercantile dealing. Obtaining goods by false pretences is, by the laws of that state, a crime; and the complaint was, or ought to have been, intended as a means of bringing the defendant to justice, and causing him to be punished for that crime; and not as a means by which the more effectually to enforce the collection of their debts. It was only upon the ground that a crime had been committed, which ought to be punished, that they obtained a requisition from the governor of Massachusetts, upon the executive of this state, for the arrest and delivery of the defendant; and it was only upon the same ground, that an order was made for that purpose, in compliance with that requisition. The governor of Massachusetts would not have issued such a requisition to enable the creditors to effect a better settlement with their debtor ■;
The course and duty of Shaw, the creditor, and agent, was, then, a very plain one. Having thus procured the arrest, he should have taken the defendant to Massachusetts, and have caused him to be there arraigned, and tried for the alleged offence. For no other purpose had he the right to arrest him in the mariner in which it was done.
If, instead of this, he caused the defendant to be arrested, and made use of the process in any manner to compel the defendant to settle, or give the note now in suit, that was a use of the process wholly unauthorized by law, and the note thus procured is void. 3 N. H. Rep. 508, Richardson vs. Duncan; Bull. N. P. 172; Com. Dig. Pleader, 2 W. 19. Indictments and handcuffs furnish very cogent reasons for settlements, when used for that purpose.
Or if, having thus arrested the defendant, it formed any part of the consideration upon which the settlement was afterwards made, and the note given, that the process should be discontinued, and the defendant released from arrest, such consideration was illegal, and the note therefore void. 5 N. H. Rep. 553, Plumer vs. Smith; 6 ditto 229, Hinds vs. Chamberlain, and cases there cited.
It must be distinctly understood that it is wholly illegal to use the criminal process of the state to extort money, or even compel the payment of debts. It was not provided for any such purpose. If a creditor is desirous of collecting a demand, lawfully due to him, the laws have provided remedies deemed by the legislature suitable and competent for that purpose. If; instead of a resort to such remedies, he attempts to pervert the criminal process of the state, and make it subservient to that object, he may, in thus depriving his debtor of his liberty, make himself liable to damages, and in some instances endanger his own. 16 Mass. R. 91, Commonwealth vs. Pease. Judgment for the defendant.
