Wilkins' Petition ( 1902 )

There is authority for the proposition that the original process upon which a prisoner is held is suspended, and the custody of the officer upon that process terminated, from the moment he receives the writ of habeas corpus (Matson v. Swanson, 131 Ill. 255); and it is generally recognized that his authority thereunder is suspended upon the return of the writ of habeas corpus and the production of the body of the prisoner. "After that time, and until the case is finally disposed of, the safe keeping of the prisoner is entirely under the control and direction of the court to which the return is made. The prisoner is detained, not under the original commitment, but under the authority of the writ of habeas corpus. Pending the hearing, he may be bailed de die in diem, or be remanded to the jail whence he came, or be committed to any other suitable place of confinement. . . . He may be brought before the court from time to time by its order until it is determined whether he shall be discharged or absolutely remanded." Barth v. Clise, 12 Wall 400; In re Kaine, 14 How. 103, 134; The King v. Bethel, 5 Mod. 19, 22; Bac. Abr., Hab. Corp. (B) 13; 15 Am. Eng. Enc. Law (2d ed.) 213, 214. And the common law in this respect does not appear to have been altered by our statute. P. S., c. 239, ss. 8, 13, 16, 18, 20. Therefore, the court or justice before whom the writ of habeas corpus was returnable had authority, upon the return of the writ and the production of the prisoner, to admit him to bail or otherwise provide for his custody pending the proceedings. As the court ordered him to recognize, it is presumed that the recognizance was taken in the name of the proper party; and the condition being broken, an action could be maintained in the name of that party, for the benefit of the creditor, to recover such damages as he may have sustained, not exceeding the penalty. Matson v. Swanson, supra; Barth v. Clise, supra.

Inasmuch as it is held that the creditor, where the original commitment is in execution of civil process, may be allowed the benefit of a recognizance so given, it would seem that it was analagous to and answered the purpose of bail given in a civil action on mesne process, and that the rights of the creditor to enforce it and of the sureties to be discharged therefrom were within the provisions of chapter 237 of the Public Statutes. But it is unnecessary to decide these questions, for the present case may be disposed of upon other grounds.

At the time the petitioners applied to be relieved from their default, the habeas corpus proceeding was upon the docket. Had it gone off the docket at the previous term of court, a motion to bring it forward would have been granted as a matter of course. Russell v. Dyer, 39 N.H. 528, 530; Rice v. Holden, 55 N.H. 398; McIntire v. Carr, 59 N.H. 207; Abbot v. Renaud, 64 N.H. 89; Boody v. Watson, 64 N.H. 162. Its presence upon the docket obviated the necessity of a motion to bring it forward.

It is admitted by counsel for the town in his brief, that at any time up to the opening of the May term, 1902, the petitioners could have surrendered their principal, and that the court, in the exercise of its "discretionary power, . . . would undoubtedly have . . . accorded them" their discharge. And no valid reason appears why the court at the May term could not make a like order, if justice demanded it; for the statute under which the recognizance was taken confers upon the court authority to "make all decrees necessary to insure the attainment of the object of the writ, and enforce it upon the principles of equity," P. S., c. 239, s. 20.

Even if the default of the recognizance were a judgment upon which execution might have issued against the petitioners, the court for good cause, on notice and a hearing, had power to vacate it or make such order as justice required. Moore v. Carpenter, 63 N.H. 65; Gilman v. Cate,63 N.H. 278, 285.

Exception overruled.

All concurred.