Nicolls v. Ingersoli — 7 Johns. 145

Majority

p. 145

Nicolls against Ingersoli.

NEW-YORK,

Nov. 1810.

Headnote

Bail may de~u~e another LG take and surrender their princithe princspal in

pa!; and the bail, or the person deputed by him, for that purpose, may take another state, or at any time and in any p1ace~ -

Mail may break open the outer door of the house, in order to take the principal.

THIS was an action of trespass, assault, and battery, and for false imprisonment. The defendant pleaded the

p. 146

general issue, with liberty to give in evidence any matter of justification.

At the trial, at the last Green circuit, the following 1 facts appeared in evidence.

At a county court, held at New-Haven, in the state oí Connecticut, the third Tuesday of March, 1803, P. Edxuards became special bail for Nicolls, (the present plaintiff,) in a suit brought against him in that court, by M. Hotchkiss. The recognisance of bail was as follows: ' “ At a county court, held, &c. Be it remembered, that in the above action, the parties appeared in court, and •'before plea pleaded, the defendant and Pierpoint Edwards •acknowledged themselves bound to the plaintiff, in a recognisance of 500 dollars, as special bail for the defendant, conditioned that the said defendant should abide ■the final judgment that should be given in the said cause.” A copy of the recognisance, or bail-piece, was certified by the clerk of the court, on the 1st of October, 1808, to which the seal of the court was also affixed; and a certificate of one of the judges of the court, was endorsed, certifying that the clerk, who signed the certified copy of the recognisance, u was a clerk of the court, and keeper of the records, and that full faith and credit ought to be given to such certificate, which was in due form.” Upon the same paper was written a power from P. Edwards, dated the 5th of October, 1808, under his hand and seal, as follows : “ Know all men, &c, that I, P. Edwards, of, See. being the same Pierpoint Edwards in the annexed copy of a bail-piece named and mentioned, have deputed, authorized, and empowered, in mv place and stead, and in m3? behalf, Joseph Wilcox, of K., &c. marshal of the district of Connecticut, to take, arrest, seize, and surrender to the sheriff of the county of New-Haven, in-said state, John Nicolls, in said copy of a bail-piece hereunto annexed named, in exoneration and discharge of my recognisance aforesaid, as special bail for

p. 147

the said Nicolls, in said cause; and to employ such persons and assistants as may be necessary to effect such purpose. In witness,” &c.

On this power there was an endorsement, as follows: “ I, the within named Pierpoint Edwards, do depute, authorize, and empower Asa Alargan of New-Ilaven, &c. to do and perform all those things, which, by the within power, I had authorized, deputed, and empowered the within named Joseph Wilcox to do and perform, and I do hereby confer on him, the said Asa Morgan, all the power and authority, which, by the within instrument I have conferred on the said Joseph Wilcox. Witness my hand and seal, the 11th of October, 1808.”

The plaintiff proved, that on the 18th of October, 1808, Morgan, and the defendant, went to the house of the plaintiff, in , in the county of Green, about 12 ■ o’clock at night, while the plaintiff and his family were in bed, and demanded the house to be opened, or that they would break it open, and soon after broke open the outer door, and entered, and found the plaintiff rising, and commanded him to dress. They, immediately, hurried him along with them to the river, and pushed him into a boat, without his hat or great coat, which were afterwards brought to him. On being asked why they treated the plaintiff in that manner, Alargan said he had a bail-piece and authority to carry the plaintiff to Connecticut. The witness understood that Pierpoint Edwards ivas the bail, and had deputed Alargan to take the plaintiff, who had promised, the day before, to go along with him, having been called on by Alargan, with the bail-piece, for that purpose.

The defendant gave in evidence, the certified copy of the bail-piece, and the power above stated, which Morgan t had with him, at the time the plaintiff was taken; audit was proved that the defendant acted by the request of Alorgan, as his assistant. When Morgan demanded entrance, or that he would break the door, a voice answered from an

p. 148

upper room, and' soon after the outer door was broken: r , open.' The plaintiff whs unwilling to go, and was- forced) along, and pushed into the boftt, ■ in which they crossed., the river to Hudson, where a- wagon was- ready to, take the plaintiff away; but he was there discharged by a judge', having been taken by one Parker, on another bail-piecey which the witness said “ grew but of a suit brought by' Edwards, against the plaintiff for this very demand.”.' The defendant and Morgan treated the plaintiff with great roughness, and the witness expostulated' with them' for treating the plaintiff so harshly. The plaintiff admitted that Morgan had the bail-piecey but declined going/ as he was on another bail-piece; and said he had made a. settlement with Morgan, who had no right to take him., The reason assigned by Morgan, for going to the plain— tiff’s house in the night-time, and for hurrying him away/was the fear of a rescue, as Parker had taken the plaintiff on another bail-piece. " .

The counsel for the plaintiff objected . to the evidence, offered on the part of the defendants; but the objections were overruled by the judge. ,

' It was' proved by a witness, who Was a counsellor of law- of the state of Connecticut■, that by the practice of the courts of that state, special -bail might,take their principal when they pleased, and surrender him into the custody of the sheriff, without any copy of the :bail,-piece,; that the paper offered in evidence, by the defendant, as, a bail-piece, was in the form used in the courts of Connec ticut. ■

¿ The judge charged the jury, that the defendant was justified by the authority under which he acted, to take-the plaintiff and carry him to Connecticut, to surrender him.. That-special bail had a right to enter, by force, into the house of the principal, after a reasonable demand of entrance and a refusal. That if the defendant had abused the authority under which he acted, he was liable for such abuse. That the questions of fact, whe

p. 149

iher the defendant had made a demand to be admitted before, the door was broken, and whether undue and unnecessary force had been made, use of in attempting to make the surrender, were submitted to the jury for their decision. If the jury were of opinion, in favour of the plaintiff, as to either of those facts, they ought to find a verdict for the plaintiff, otherwise, for the defendant; that in his opinion, there was evis dence to justify a belief that Edwards had paid the mo- ■ ney in the suit, in which he was bail for the plaintiff, in Connecticut, or had become liable for, the same; for had he not paid the money, or become answerable for the plaintiff, he would not have brought an .action on the judgment against the plaintiff in this state; and that though Edwards had sued the plaintiff for the same cause, and held him to bail, in this state, he was authorized to take the plaintiff on the bail-piece, and carry him to Connecticut, and surrender him there.

The jury found a verdict for the defendant.

A motion was made to set aside the verdict, and for a new trial, on the following grounds :

1. That special bail cannot delegate their power:to take and surrender the principal, unless in case of neces-: sity, and such necessity must be clearly shown to exist.-

2. That if the power could be delegated, yet, neither the bail nor his deputy can take the principal in a place, out of the jurisdiction of the state, in the court of which the recognisance has been taken.

3. That the bail in this case, having paid, and so discharged the judgment in the state of Connecticut, and having elected to proceed against the bail in this state, for the same cause of action and hold him to bail here, could not, afterwards, surrender him in the original action. .

4. That special bail cáiinot break open the outer door of the house, td' take' the principal.

p. 150

Van Buren and Woodward, for the plaintiff.

1." There áre no authorities in point, to show that the bail may delegate their power. The power of the.bail cannot, as is pretended by the defendant, be unlimited, so that they may take the principal at all times, in all places, and under all circumstances. It is evident, from the expression used by the court in Boardman' and Hunt v. Fowler^[10] that the power of the bail to depute, is confined to a case of necessity. This seems to be the reasonable rule. The confidence of the principal in his bail is personal; and the power ought not, except ex necessitate, to be transferred to a stranger.

2. The law supposes the principal to be alwaj's in the custody of his bail; but the power of the bail over the principal is not derived from any agreement between them, but from the court: and the court cannot authorize ■the bail to take the principal, in a place where the court could not authorize an arrest. In an anonymous case, in Shower,^[7] it is said, if the principal abscond, and the bail cannot find him, they shall have a warrant, or tip-staff, to take him out of White Friars, or any other pre tended place of privilege, because he is a prisoner to the. court. No cases are to be met with, which are decisive on this point. The court must, therefore, decide on-principle, and with a view to the consequences which may result from the doctrine contended for, by- the defendant.

3. The defendant had no right to break open the outer door of the plaintiff’s house. A-man’s house is regarded, by law, as his castle,^[8] and is privileged, except for the purpose of serving criminal process.

4. The bail, in Connecticut, having brought an action' against the principal, on which he has held him to bail in ■this state, has thereby waived his. right to surrender him,.. in the original suit. .The plaintiff must be considered,', in the custody of his bail here, and cannot be taken out of the state.

p. 151

E. Williams, contra,

i. This court have decided, that „ , . , , bail may depute, ex necessitate: and the court will now presume, that the necessity, in this case, was shown at the trial.

In Fisher v. Fallows,^[10] Lord Ellenborough held, that the bail were entitled to recover, in an action of assumpsit, all the expenses he had been put to, in sending after the principal, for the purpose of surrendering him; he said, that if the principal absconds, so that he cannot be had, the bail may use every proper and necessary step to secure him. It is a necessary inference, from this decision, that the English courts consider the bail as having a right to depute another to take the principal. In the case of Meddowscroft v. Sutton,\ the executors of bail were allowed to surrender the principal. Not a doubt was suggested of their right to make the surrender. This is a deputation, by operation of law; and it shows that the right of making the surrender is not personal, or to be exercised only by the bail themselves.

2. Then can this power be exercised out of the state, in which the recognisance wras taken ? If this power must emanate from the court, in which the party was held to bail, then it could not be- exercised out of the jurisdiction of such court; and in the case of a recognisance of bail, in a court of common pleas, the bail could not take their principal, in another county; but a doubt has never been entertained, that on a bail-piece from any court of common pleas, the principal may be taken in any county in the state. But this power of bail does not depend upon any authority, or process of the court. It results from an implied contract, between the principal and bail, arising out of the relation between them; the principal having been, at his own request, taken from the custody of the sheriff, and delivered into the custody of his bail, where he is bound to remain, and, in contemplation of law, always does remain. This engagement follows the principal wherever he goes, and

p. 152

wherever the bail can find him. Thus, it has been well said,^[10] “ The bail have their principal on a string, and may pull the string whenever they please, and render him in their own discharge; they may take him even upon a Sun- and confine him until the next day, and then surrender . . , him; the doing it on Sunday, is no service ol process. In French’s case,^[7] the bail took their principal in the city of London, and committed him to the Compter there, in order to remove him by habeas corpus, and surrender him, in their discharge, in the court of King’s Bench,. in which the original suit was brought; and before the surrender could be made, he was charged with a debt, at the suit of the crown;- but the court held, notwithstanding, the bail might take the prisoner, and surrender him in the King’s Bench.

The doctrine is this: the bail may take the principal, when and where he pleases; no time is so holy, on which it may not be done; no place is so sacred, into which he may not enter, for that purpose. He has the principal always on a string, and though extended to the remotest corner of the earth, he may pull it when he pleases. In Wood v. Mitchell,^[8] in the K. B., where the defendant had been convicted of felony, and sentenced to transportation, the court ordered an exoneretur to be entered on the bail-piece.

3. In Sheers v. Brooks,^[9] Lord Loughborough said, when a party. is bailed, the bail have a right to go into the house of the principal, as much as himself; they have a right to be continually with him, and to enter, when they please, to take him.” The bail had a right, then, to break the door. The judge, at the time, seemed to think, that there should be a reasonable demand of entrance, and a refusal, before breaking the door. This fact, if necessáry to be shown, must have been found by the jury. The court will now intend, that it was proved.

4. It does not satisfactorily appear, for what the suit was brought, against the plaintiff, by his bail, in this state. It may have been for the charges and expenses, the bail

p. 153

has been put to, in attempting to make a surrender. If it Was for the amount of the original judgment, that fact ought to have been clearly and fully proved. There was no evidence, whatever, that the judgment had been satisfied or discharged. I shall not, therefore, argue this point.

As to the abuse of the power, by the defendant, or the actual violence used against the plaintiff, the jury have decided on the fact; and there is no ground for granting a new trial, where the plaintiff could recover, at most, but nominal damages.^[10]

delivered the opinion of the court. Several questions were made on the argument of this case. The first in order was, whether bail could depute or authorize another person in his stead, to take and surrender his principal. In Boardman v. Fowler, ( 1 Johns. Cas. 314 .) decided in this court, the surrender was made by an agent of the bail, and one of the objections taken to it was, that bail could not depute for this purpose. By the form of the' certificate, however, the principal appeared to have surrendered himself, and the court said they would presume it was done voluntarily. But if it had been necessary to decide the question, they were inclined to the opinion that special bail may depute, ex necessitate. The case of Meadowscraft v. Sutton, (1 Bos. & Pull. 62.) shows, that the executor of bail may surrender the principal. This may fall within the rule suggested in the last case; but they both go to establish the general principle, that the right to surrender results from the relation between the bail and principal; that it is to be effected as circumstances shall require, and is not-a personal power or authority, tobe executed by the bail only. Lord Ellenborough, in Fisher v. Fellows, (5 Esp. Cas. 171.) allowed bail to recover against his principal the expenses of- sending after him to take him, for the purpose of making a surrender.

p. 154

The bail, says he, has a right to surrender the principal in his own discharge, and for his own security; and if the principal absconds, so that he cannot be had, the bail may take every proper and necessary step to secure him. It is not expressly stated, that the person sent after the principal was deputed to take him; but it is fairly to be presumed, that such was the fact. I see nothing, on general principles, against allowing this power to be exercised by an agent or deputy; and no case is to be found where the right has been denied. It is a general rule of law, even with respect to public officers, that their ministerial acts may be performed by deputy; and with respect to private individuals, the law recognises the act of an authorized agent as equal to that of the principal; and there is no principle of policy which renders it necessary to make this case an exception.

The next inquiry is, as to the right of bail to take the principal out of the state in which the recognisance was entered into. I do not perceive- how any question of jurisdiction can arise here. The power of taking and surrendering is not exercised:under any judicial process, but results from the nature of the undertaking by the bail. The bail-piece is not process, nor any thing in the nature of it; but is merely a record or memorial of the delivery of the principal to his bail, on security given. It cannot be questioned, but that bail in the common pleas would have a right to go into any other county in the state to take his principal; this shows that the jurisdiction of the court in no way controls the authority of the bail; and as little can. the jurisdiction of the state affect this right, as between the bail and his principal. How far the government would have a right to consider its peace disturbed, or its jurisdiction violated, or whether relief would not be granted on habeas corpus, where a citizen of this state was about to be carried to a foreign country, are questions not now before the court.

A recurrence to a few cases in the books, showing

p. 155

the relation in which the law considers the bail as standing towards his principal, will render it obvious, that the power with which he is clothed is not one restricted in its exercise to any particular place. Sir William Blackstone (3 Com. 290.) says, the security given for the appearance of a party arrested, is called bail, because the defendant is delivered to the surety, and is supposed to continue in his friendly custody, instead of going to gaol.

Bail, in the language of the books, are said (6 Mod. 231.) to have their principal always upon a string, which they may pull whenever they please, and surrender him in their own discharge. They may take him up, even upon a Sunday, and confine him until the next day, and then surrender him. The doing so on Sunday is no service of process, but rather like the case where the sheriff arrests a party who escapes, for that is only a continuance of the former imprisonment. Lord Hardwicke says, (1 Atk. 237. Ex parte Gibbons,) it is the constant language of courts, that bail are their principals’ gaolers, and that it is upon this notion that they have an authority to take them ; and that, as the principal is at liberty only by the permission and indulgence of the bail, they may take him up at any time. The same principle is recognised in Shoxjuer, (Anonymous Case, 214.) where it is said by the court, that bail are but gaolers, pro tempore; and in case a man absconds, and his bail cannot find him, they shall have a warrant to take him out of any pretended place of privilege, in order to surrender him, because he is a prisoner to the court, and they may call him at pleasure. If the principal is to be considered as standing in the situation of a prisoner who has escaped from the arrest of the sheriff, according to the language of one of the cases, can there be any reasonable doubt but a sheriff, in such case, would have a right to pursue and arrest his prisoner in a neighbouring state; and, by parity of reasoning, bail must have the like authority. The cases I have referred to are suEciefit to show that the law' considers the principal as a prisoner, whose gaol

p. 156

liberties are enlarged or circumscribed, at the will of his ° bail; and, according to this view of the subject, it would ■ Seem necessarily to" follow, that, as between the bail and his principal, the controlling power of the former over the latter ro.a)7 be exercised at all times and in all places ; and this appears to me indispensable for the safety and security of bail.

Another" question presented was, whether the bail had a right to break open the outer- door of the plaintiff’s house to make the arrest. The verdict authorizes us to presume, that a demand was made before entry; for this fact was submitted to the jury as being necessary to be shown by the defendant, to render the . entry lawful. That the bail may break open the outer door of the principal, if necessary, in order to arrest him,-follows, as a necessary consequence, from the doctrine,' that he has the custody of the principal; his power is analogous to that of the sheriff, who may break open an outer door to take a prisoner, who has escaped from arrest. But the case of Shears v. Brooks, (2 H. Black. 120.) goes the whole length of this doctrine. Lord Loughborough there says, when a party is bailed, the bail have a right to go into the house of the principal, as much as he has himself. They have a right to be constantly with him, and to enter when they please, and take him. The right to break open the plaintiff’s house, in the case before us, is fortified by the circumstance of his having been taken a few days before, on the bail-piece. His situation, in point of fact, as well as in judgment of law, was somewhat analogous to that of a party escaping from arrest.

One of the judges made an observation, in the case last referred to, which is very important, and shows, that, on all these points, the rights of the bail should be liberally considered. He said, that a determination, in that case, against the right of the bail to enter the house, would affect the liberty of the subject, as it would make it extremely difficult to procure bail.

p. 157

The objection, that the bail had discharged the judgment, and for his indemnity had arrested the plaintiff here) and held him to bail, is not supported by the requisite evidence to establish the fact. The loose declarations relative to a bail-piece against the plaintiff, in a cause for the same demand, was not such evidence as the case required, and was in the power of the party. There is nothing in the case to warrant us in saying that the time to surrender had elapsed. If that was the fact, it was susceptible of clear and positive proof; and if the plaintiff intended to rely upon that allegation, he was bound to support it by satisfactory evidence.

Whether the authority to arrest was not abused by the exertion of undue force, or unnecessary severity, has been decided by the jury in favour of the defendant. This was matter of fact, proper for their determination, and was very fairly submitted to them. The verdict, therefore, on this point, ought not to be disturbed.

The motion for a new trial must be denied.

Spencer, J. not having heard the argument in the cause, gave no opinion.

Rule refused.