Palmer v. Allen , 5 Day 193 ( 1811 )

EiiAiN.ut», .1.

The original action was trespass, for an as3auit and battery, and false imprisonment; in which the. defendant in error was plaintiff, and to which, the defendant below, now plaintiff in error, pleaded specially, that he was a deputy to the marshal of the United States, for the district of Connecticut; and in that capacity, had in his hands to serve, a writ of attachment, issued under the authority of the United Stales, returnable to the district court of the United Stales, for said district; in virtue of which, he attached the body of the plaintiff below ; read the writ in his hearing ; and for want of bail, committed him to the keeper of the gaol in X'w-líftvni, &c. with whom he left a true and attested copy of said writ and process ; which he avers to be the same imprisonment and pretended trespass complained of, &c. To which, there was a demurrer, and joinder in demurrer. The Superior Court adjudged the plea to be insufficient ; whereupon, this writ of error was brought.

The process, under which the defendant in error, was arrested, was an action of debt, brought on a statute law of the United Stales, for an alleged breach thereof. Whether that law be constitutional, or not, as it is unnecessary, would, perhaps, be indecorous to discuss; and w hether debt be the proper action, is unimportant for my purpose. The process was under a bur, and issued by authority of the United Slates; was in the hands of a marshal, and returnable to á court of, the United States. Service appears to have been made, by arresting the defendant’s body, reading the process m his hearing, and for want of bad, commitment, <fcc. The authority of the gaoler to receive and keep the defendant, was a copy of the process, without a mittimus. Is this a justification ? Is this a defence 1 -

The question is, whether in Connecticut, in an action of debt, for inslance, commenced by writ of attachment, and returnable lo our courts, the defendant can he committed without a mittimus ? If a miniums he not necessary, this case is settled, and there b manifest error. Rut d it be necessary, then another quofUion arises, whether a imtlimus should be had, in a process issued under the laws and authority of the l'ratal Slates, returnable to, and cognizable by, a court of the l'nilal Stairs, to Iso served in this state, on a citizen thereof l The proposition is correct, that in Connecticut, such is her constitution, and such her laws, and system of jurisprudence, from iter infancy, that no tnau's person shall he imprisoned, unless by judgment of court, or the direction and order of a magistrate. Jti every instance of final pro cess, there is an ord r of commitment, a mtthims, contained in the body of the instrument or execution itself. — In all cast s, where the subject matter has been adjudicated, by a court of competent jurisdiction, the officer’s duty is pointed out; the extent of the debtor's or delinquent’s liability, is ascertained; the result is made ; the end is known.

On attachments, it will be agreed, on all hands, that a man shall not be committed to prison, if he procure reasonable bail. Of the reasonableness or sufficiency of this bail, who is to judge ? Is the officer, in all cases, to determine thin point ? 1 apprehend not. In case of an attachment, She direction to the officer is, indeed, for want of estate, to attach the body of the defendant, and him safely keep, and have to appear before the court. But the mode of this safe keeping, and having to appear, is pointed out and p¡o', filed for, bylaw.

The most ancient statute to be found, on the subject, entitled “ an act for regulating gaols and gao'<‘rff’ provides, « that no person or persons whatsoever, who shall be committed to prison, although arrested or seized by attachment, execution, or any other writ, or for non-payment of rate" debts or fines, or for any misdemeanor, or capital or criminal offence, or any other cause, without a mittimus, granted an-' signed by civil authority, declaring the cause and ground of Ms commitment, requiring the gaoler lo receive and kern such person or persons, in the prison, until discharged according to law.” In a subsequent síaíute, passed in Mai/, 1700, entitled “ an act concerning officers’ levying execution?,” it is enacted, “ that when any officer sisal! nave a writ of execution to levy. &c. and doth seize the body, &c. and commit him to prison, a copy of the writ or execution, signed by the officer, and delivered to the gaoler, -had ho sufficient warrant, or order, for him to receive such poison, and him hold in safe custody, till delivered, by Saw."

In the revision of the statutes, in the year 1750, the phraseology of the former statute, was altered ; and the latter was incorporated with it, under the title of an act concerning arrests and imprisonment, for debt, damage, fines,” &c. This statute has remained the same, ever since ; and its provisions, in relation to this subject, are as follows : “ that no person or persons, for the non-payment of rates, fines, debts, or for any crime or offence, shall be committed to prison, without a mittimus, granted and signed by civil authority, declaring the cause and ground of his commitment, requiring the gaoler, master, or keeper of the prison, to receive and keep such person or persons within the prison, until discharged according to law ; unless where any proper officer, for want of estate, seize the body or bodies of any person or persons, by execution or distress, or warrant for tines or rates, and commit him or them to prison ; in which case, a copy of the execution or distress, attested and signed by such officer, and delivered to the gaolar, master or keeper of the prison, shall be a sufficient warrant or order, for him to receive such person or persons ; and him or them to hold in -ufo custody, till delivered by law.” ^(a)

1’ioin the broadness of the ancient statute, it is apparent, that, in relation to all process, civil or criminal, mesne or final, no person could be committed to prison, without a mit-timus, an instrument stating the cause, ordering the reception, and directing the detention, signed by a magistrate, or, as the expression is, “ civil authority.”

In 1706, it occurred to the legislature, that part of this provision was unnecessary ; that in final process, there was a mittimus, in relation to that subject, from the highest authority ; lienee the legislative dispensation wit is regard to » minimus, in eases of executions.

When the legislature, in 1750, incorporated the latter statute, which made a distinction between final and mesne process, into the former, can it be supposed, that they intended to narrow the grounds of the ancient pro\ isions and regulations 1 At the same time, it also occurred to the legislature, that there were other cases than those of executions, where a mittimus, in the sense generally understood, would not only be unnecessary, but improper ; hence, the exemption was extended to distresses or warrants for fines or rates.

The present statute says, that no person, for the non-payment-of rates or fines, shat! be committed to prison, without a mittimus ¡ unless, indeed, a distress or warrant, for such rates or fines, has been granted by proper authority, having competeut jurisdiction.

The word “ debts” in the statute, still remains to be satis-tied with a fair and reasonable construction. The original title of the act was, “ an act concerning arrests and imprisonment for debt, damage, fines,” &c. Suppose the language to be, that in an action for debt, no person shall be imprisoned without a ihitlimus. This would comprehend all actions of debt, in a proper and technical sense ; of course, it Mould comprehend the claim in the action under consideration. But this, I apprehend, is too narrow a construction. The true meaning is such, as to include all actions by attachment, by which any debt or damage is sought to be recovered; and which, by legal process, may be reduced into debt or damage. In all which cases, while in mesne process, before adjustment, there shall be a mittimus, to authorise a commitment ; after which, when liquidated, the execution itself contains a sufficient authority.

But the statute, since its existence in its present form, seems pretty generaliy, to have . received an uniform practical construction. The best comment, perhaps, that can now be made upon it, is, so far as I can learn, that it has received. in practice, in relation to mesne process, the same ■-.¡¡nsiruclion flrat was given to the former statute, in relation to the same subject, and which the, words of tiiaf statute absolutely and necessarily required. Roth by the former, and ¡¡resent statutes, la all cases of attachment, a mUhtnin has been deemed necessary to authorise a commitment.

Rut a second, ami perhaps, a more important question, re mains, in mesne process, by attachment, for debt, issued under the law and authority of the United States, returnable to a court of the United States, to be served on, a citizen of this state, within the same, to authorise a commitment, is a mittimus necessary 1

The United States have a right to prescribe what mode of service for their own processes, they may deem proper ; and if they have pointed out a mode, that mode must be pursued; if they have not, it should seem fair reasoning to conclude, that they had left that subject to the existing regulations of the several states. The United States have a statute, entitled “ an act for regulating processes in the courts of the United States,’' *vo,, in which, (Laws of the United States, vol. 2. s. 2, p. 103.) it is enacted, “ that the form of writs, executions and other process, except their style, and the forms and modes of proceeding, in suits at common law, shall be the same as are now used in the said courts respectively, in pursuance of the act, entitled, an act to regulate processes in the courts of the United States.” What those forms and modes are, the statute no where specifies, other than by the above reference; and the same statute expressly repeals the whole of the act referred to. On recurrence, however, to that statute, we find it there enacted, “ that the forms of writs, &c. and modes of process in the circuit and district courts, in suits at common law, shall be the same in each state respectively, as are now used, or allowed, in the shpreme courts of the same.”

Rut it has been said, that a mittimus is no part of the process. If 1 am correct in my conclusion, on the first point, it is, by the law of this State, a part, and essential to the completion of service, in case of commitment. If part of the service, it is part of the process. Process, in one sense, is the method to be pursued by law, to compel a compliance with the original writ, by giving the party notice to obey it; a warning to appear in court, nt the return of the orignal writ: On failure of obedience, further process is said to be had, by attachment, &c.

1 understand, that the word “process,” as used by tbe legislature of the United Stolen, in tbe statute referred to, is to be received in its broadest and most extensive sense. It is to be taken for all proceedings in any action, from the begin' ning to the end. Mode of process, includes mode of service. Whatever is necessary to complete tbe service of a writ, returnable to a state court, is by that statute, made necessary, to complete the service of a writ returnable to a district ot circuit court of the United States. A mittimus !⅞ as necessary in one cage as the other.

But, it may be said, that there is no provision in the laws of the United States, for procuring a mittimus ; and that of course, there may be a failure of justice. When the legislature of the United Slates referred to the laws of the' several states, they were bound to know them, and to make provisions correspondent with them ; and I am not prepared to say, that they have not. I am not prepared to say, that it would not be the duty of the judges and justices of this Stale, on application of the marshal, to grant a mittimus. Besides, they have, in each district, at least, one judge peculiarly their own. Sufficient is it, that they have the power ot making all necessary provisions on this subject. They do. in many instances, call into their service, ¡be judges and justices of the state courts, and make them, ,vra hen; vice, ¡belt own ; thus, authorising them to take bonds of recognizance, in cases of prosecutions for breaches of the iaws of the United Stales, and in various other instances. Bui. in the words-of a great man, and eminent judge, “ if the law does not work right, let the legislature mend it; it is their business.”

I am of opinion that there is no error.

Mitciielij, Ch. J. Reeve, Trumbull, Edmond, am. Smith, Js. concurred in the foregoing opinion, Ijvoe&soll, J, having been of counsel in the cause, did not judge.

(a) Vid. Stat. Conn. tit. 13. c. 1. proviso to s. 1.