JOHN HUBBARD et a. vs. ENOCH SANBORN, 2 N.H. 468 (1822) - Opinion

This was an action of assumpsit. The defendant prayed judgment of the plaintiff’s writ, because he was arrested by virtue thereof on Monday the sixth day of November, 1820, in Bath,in this county, being the same day on which a town meeting was holden at said Bath, for the choice of electors of president and vice-president of the United States; he the defendant being then and there an inhabitant of said town of Bath and entitled to vote therein.

To this plea the plaintiffs demurred, and the defendant joined in demurrer.

(1) 1N.H. Laws, 252.

(t) 2 Stt. 985.

The statute of June 23, 1813, sec. 5, (l)enacts, “ that during the day on which any town meeting “ shall be holden, for the choice of state and county officers, “ representatives to congress, or electors of president and « vice-president of the United States, no inhabitant of any “ town or parish, who is entitled to vote therein, shall be li- “ able to arrest on any civil process whatever,” and the question,which this case presents is,whether it is a sufficient cause to abate the plaintiff’s writ, that it was served by an arrest of the body of the defendant on a day, when he was exempted from arrest by the statute above recited ?

It has been decided in Massachusetts, that when a writ is improperly served, it is a good cause of abatement. 14 Mass. Rep. 216, Brewer vs. New-Gloucester. In the case of Holliday vs. Pitt,(2)Mr. Pitt being a member of parliament, and arrested within the time of privilege of parliament, was discharged without filing common bail, and the court said that they would not order Mr. Pitt to fit# common bail, “ because it in some manner warranted the ar* “ rest.” A discharge in this case, without filing common bail, was tantamount to an abatement of the writ. 3 Bl. Com. 207.—2 H. Bl. 300.—Comyn’s Rep. 444.—Ditto Dig. Priv. A. 1.—2 Mod. 182.—Tidd’s Prac. 210—216.

(1) 8 Johnson 351.

In the case of W. Livingston,{l)Livingston was a judge of the court of common pleas and not liable to arrest by process from his own court, and being arrested by sucn process, the capias and all subsequent proceedings wtrf set aside by the court of common pleas, and when the as brought, before the supreme court, it was there as nothing in the case that called for their ir

In England, there are cases whew properly is discharged upon fiL.y Cy 89, Spence vs. Stuart.—2 Mod. 181, Long's case.

it seems to be well settled, that an am ⅛, - <• - si' s’V is void, and the officer who makes it a trespasser Tidd’s Prac. 189.—13 Mass. Rep. 324, Pearce vs. Atwood.—3 Bur. 1595, Swan vs. Brown,—12 John, 178, Van Vechten vs. Paddock. But although the sheriff is bound to take notice of the sabbath, he is not bound to take notice of an individual’s exemption from arrest, and trespass does not lie against the sheriff for arresting an exempted person. 2 W. Black. 1190, Cameron vs. Lightfoot.—2 do. 1085, Crosby vs. Shaw.

In some cases, if the sheriff arrest a person privileged from arrest and let him go at large, it is an escape. 18 John. 52, Stcorvs. Bell. But when a person exempted from arrest by statute, is arrested, the sheriff may let him go at large and it is no escape. 11 John. 433, Ray vs. Hogeboom.—Green vs. Edson, Cheshire, Oct. 1820.

In the present case, the arrest was against the express provisions of a statute and illegal, yet if the defendant cannot abate the writ, what remedy has he ? Relief upon a habeas corpus would come too late to answer the object of the statute. The sheriff is not liable; nor is the plaintiff liable, because the arrest maybe without his knowledge. But if the writ abates, the bail, whom the defendant may procure, will be discharged; and a knowledge of this may facilitate the procurement of bail by persons illegally arrested. In the present case, as the only service of the writ was the arrest of the body of the defendant, and as the arrest was against the express letter of the statute, we are of opinion, that the service of the writ must be held to be altogether illegal and void.

Writ abated.