Bank of Vergennes v. Barker ( 1855 )

The opinion of the court was delivered by

Redfield, Ch. J.

I. Tbe statute in regard to tbe arrest of tbe body would be more consistent to extend to all nonresidents, without regard to citizenship, as it does in many of tbe states, and formerly did in this state. And it must be confessed, that tbe terms “ abscond or remove,” have no very appropriate reference to nonresidents, still, it cannot be supposed that the legislature intended to exempt them from all arrests on mesne process, under all circumstances. And tbe statute of 1852, which extends this exemption to citizens of other states, does in terms provide, that upon filing an affidavit, that tbe defendant is about to abscond or remove from tbe state, &c., tbe process may issue as a capias. Here undoubtedly, tbe words must have such a signification, as wib render them apphcable to the subject matter. Where tbe defendant is a nonresident, temporarily in tbe state, the words “ abscond or remove” must imply such absconding or removal, as such person is capable of.

H. In regard to the statute of 1849, §73 of Cb. 31 of Comp. Stat. giving persons “ privileged” from arrest tbe right to plead such privilege in abatement, we think it was not by “ privilege” intended to include every one, not bable to arrest without tbe fihng of an affidavit, but that tbe word “privileged” is to receive its ordinary and legitimate force, as extenchng to exemptions from arrest, upon peculiar grounds, applying to some particular classes of persons, as parties and witnesses, attorneys and counsellors, and members of the legislature and of congress. That is all, which the words of the statute import. And the fact, that the courts in this state, (Fletcher v. Baxter, 2 Aik. 224,) had held, that such privilege could not be plead to the action is sufficient reason for passing the statute.

And the statute having provided a mode whereby persons, improperly subjected to arrest by affidavit, may rid themselves of the arrest, and the suit still being required to proceed to judgment, seems to imply, that it was not expected that the process, in such cases, should be abated on that account. We think therefore that the case was properly determined in the county court.

Judgment affirmed,