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, 24 N.H. 333.
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, 1 N.H. 173. In modern practice all this condition and contract is regarded as expressed by the bail putting their names on the back of the writ, thereby giving their assent to the taking upon themselves the liabilities of bail. Pierce v. Reed, 2 N.H. 360-362.
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 *Page 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, 6 Vt. 579.
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, 2 N.H. 360, Mr. Chief-Justice RICHARDSON says, — "In this state bail is given to the sheriff by bond;" but on page 362 he says, — "The real contract into which bail enter is prescribed by statute." "No lawyer," he continues, "would think of looking into the condition of a bail bond in order to ascertain the nature of the contract. Indeed, a bail bond is rarely actually taken by the sheriff in this state. The bail, instead of executing a bond, put their names on the back of the writ, and thereby give their assent to the taking upon themselves the liabilities of bail."
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 *Page 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, 44 N.H. 480, 431; Tidd's Prac. 90; Morse v. Calley, 5 N.H. 222.
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,1 Mich. 265.
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 *Page 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, 20 Mich. 32, it was held that the giving bail upon arrest did not operate as a waiver of the right to object to the affidavit; but the decision went upon the ground that by local statute a party arrested on affidavit is to be brought forthwith before a justice, to answer the plaintiff in the plea mentioned in the warrant, and, before any adjournment for the purpose of pleading is allowed, the defendant is compelled to give bond or remain in custody; and it was considered that it would be onerous and unreasonable to regard the giving of bail in such a case as a waiver of the right to object to the affidavit.
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.