By Gen. Stats., ch. 206, sec. 13, "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 the satisfaction of the officer, to become his bail by endorsing their names or signatures as bail on the back of the writ."
In this case, the officer's return showed that the writ was served by arresting the body of the defendant, and taking bail. We must understand that the writ was that which in the General Statutes is called capias and attachment. By the writ, the officer is ordered to arrest the body of the defendant, or to attach his goods and estate, and summon him, c. By Gen. Stats., ch. 206, sec. 13, "When any person is arrested on mesne process, he shall be committed to jail unless he procures one *Page 617 or more persons of sufficient ability, to the satisfaction of the officer, to become his bail by endorsing their names or signatures as bail on the back of the writ." By the precept of the writ he is to arrest the body and make return of the writ, with his doings therein; and, by the statute, having arrested the defendant, he is to commit him to jail, unless he procures bail. It follows that in this case, in which the return shows that the defendant was arrested and held to bail, and the facts duly returned, the process was duly served.
By Gen Stats., ch. 207, sec. 1, "If any defendant, on whom process has been duly served, neglects to appear at the court to which the same is returned, his default shall be recorded, and judgment shall be rendered against him for such damages as upon inquiry the plaintiff appears to have sustained."
The defendant in fact did not appear. Counsel had leave on his behalf to move for his discharge, and that of his bail, but with the express reservation that they did not appear so as to submit themselves to the jurisdiction of the court; — in other words, he did not appear, and was properly defaulted.
The case, therefore, comes exactly within the statute. Is there anything apparent from the case by which this result is prevented? I understand the position of counsel to be, that the discharge on motion shows that the defendant was not liable to arrest, and that service made in that way is no service, and therefore there has been no due service of process.
I do not so understand the statute, which expressly authorizes the arrest if a proper affidavit be indorsed on the writ. The arrest being legal, carries with it all the consequences of a legal arrest, excepting in so far as the statute modifies it. The statute modifies the arrest to this extent, that the defendant may at the return term of the writ move the court to be discharged, or that his bail or sureties may be discharged; and the court, upon satisfactory evidence that the defendant does not conceal his property, and does not intend to leave the state, may order such discharge.
But the statute expressly provides — Gen. Stats., ch. 206, sec. 11 — that "No such discharge, nor any discharge of a person arrested or imprisoned on execution, shall discharge the debt or judgment upon which the execution issued."
It should be observed that the statute speaks in the present tense. The defendant is to be discharged, not if it is made to appear that he did not at the time the arrest was made conceal his property, and was not then about to leave the state, but it is if it shall be made to appear that he does not conceal his property, and is not about to leave the state. So, when the execution issues, the affidavit is still in the present tense, and the defendant cannot be taken on execution, unless he is at that time concealing his property, c. The discharge, then, by the court does not show that he was not liable to arrest at the time he was arrested, but that he is not at the time of his discharge liable to be longer detained. *Page 618
So, by section 12, "In any case when no sufficient attachment has been made, and there is no sufficient bail, the court or any justice thereof, upon motion and satisfactory evidence that the defendant intends to leave the state, may order a capias to issue, on which the defendant may be arrested and held to bail as on an original writ." Of course it would seem to follow, that if the defendant do not furnish bail be must be committed.
It was seriously contended soon after the passage of this law that the whole proceeding depended upon the facts existing at the commencement of the action, and it was contended that, such being the case, no affidavit need be put upon an execution issued where there had been an affidavit upon the writ; but the court held otherwise. Kidder v. Farrar, 20 N.H. 320; Janes v. Miller, 21 N.H. 371. In these cases it was held, that, notwithstanding the affidavit was upon the original writ, there must also be an affidavit placed upon the back of the execution. This view, if correct, entirely destroys the force of the contention that the discharge by the court shows that the original arrest was illegal, and of no effect.
It being expressly enacted that after due service of process, and return of the same to the court, the defendant, if he do not appear, shall be defaulted, — and in this case, the defendant not having appeared, — the default was rightly ordered.
Exceptions overruled.