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7 Johnson 154 (1803)




United States Supreme Court

Nicolls vs. Ingersoll

7 Johnson 154 (1803)

This was an action of trespass, assault, and battery, and for false imprisonment. The defendant pleaded the general issue, with liberty to give in evidence and matter of justification.

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

At a circuit court, held at New Haven, in the state of Connecticut, the third Tuesday of March, 1803, P. Edwards became special bail for Nicolls (the present Plaintiff) in a suit brought against him in that court, by M. Hotchkiss. The recognizance 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 recognizance 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 recognizance or bailpiece was certified by the clerk of the court, on the first 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 recognizance, "... 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 fifth of October, 1808, under his hand and seal, as follows: "Know all men that I, P. Edwards, of, &c, being the same Pierpoint Edwards in the annexed copy of a bail-piece named and mentioned, have deputized, authorized and empowered, in my place and stead, and in my 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 recognizance aforesaid, as special bail for the said Nicolls, in said cause; and to employ such persons and assistants as may be necessary to effect such purpose. In Winess," &c.

On this power there was an endorsement, as follows: "I, the within named Pierpoint Edwards, do deputize, authorize and empower Asa Morgan, of New Haven, 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 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, Morgan said he had a bail-piece and authority to carry the plaintiff to Connecticut. The witness understood that. Pierpoint Edwards was the bail, and had deputed Morgan to take the plaintiff, who had promised, the day before, to go along with him, having been called on by Morgan, 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 had with him at the time the plaintiff was taken; it was proved that the defendant acted by the request of Morgan as his assistant. When Morgan demanded entrance or that he would break down the door, a voice answered from an upper room and soon after the outer door was broken open. The plaintiff was unwilling to go and was forced along and pushed into the boat, 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-piece, which the witness said, "... grew out 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-piece, but declines 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 plaintiff'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 counselor of law of the state of Connecticut, that by the practice of the courts of that state, special bail might take their principle 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 a form used in the courts of Connecticut.

The judge charged the jury that the defendant was justified by the authority under which he acted, to take the plaintiff to the state of Connecticut to surrender him. That special bail had a right to enter, by force, into the house of the principle 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, whether 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 favor 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 evidence to justify a belief that Edwards had paid the money in the suit in which he was bail for the plaintiff in Connecticut, or had become liable for 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 for a verdict for the defendant.

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

1. That special bail cannot delegate their power to take and surrender the principal unless in case of necessity, 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 in which the recognizance 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 cannot break open the outer door of the house to take the principal.


Van Buren and Woodward for the plaintiff.

1. There are 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 by the expression used by the court in Board man and Hunt vs. Fowler, 1 (Johns. Cas. 314) that the power of a 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 that the principal to be always 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 the court could not authorize an arrest. In an anonymous case, in Shower (2 Show. 202. 3 Vin. 498. Bail, A. a.7) it is said, if the principal abscond, and the bail cannot find him, they shall have a warrant or tipstaff, to take him out of White Friars, or any other pretended 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 (5 Co. 91) 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.

E. Williams contradicts.

This court having 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 (5 Esp. Cases, N.P. 17) 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 is 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 the right to depute another to take the principal. In the case of Meddowscroft v. Sutton (Bos. & Pull. 61) 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 by only the bail themselves.

1. Then can this power be exercised out of the state in which the recognizance was 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 said court, and in the case of recognizance 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 on any authority or process of the court. It results between 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 wherever the bail can find him. Thus it has been well said, (Anonymous, 6 Mod. 231). "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 Sunday, and confine him until the next day, and then surrender him; he doing it on Sunday is no service of process." In French's case (6 Mod. 247) 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, not withstanding, the bail might take the prisoner and surrender him in the King's Bench.

2. 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 (6 Term. Rep. 247) in the K.B., where the defendant had been convicted of a felony, and sentenced to transportation, the court ordered an exoneretur to be entered on the bail-piece.

3. It does not satisfactorily appear for what the suit was brought against the defendant by his bail in this state. It may have been for the charges and expenses the bail has been put to in attempting to make 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.

4. As to the abuse of the power by the defendant, or the actual violence used against the plaintiff, the jury has decided on the fact, and there is no ground for granting a new trial where the plaintiff could recover, at most, but nominal damages. (3 Johnson 239, 528)

Thompson, J., delivered the opinion of the court.

Several questions were made on the argument of this case. The first in order was whether the bail could depute or authorize another person in his stead to take and surrender his principal. In Boardman v. Fowler (1 Johnson Cas. 314) the surrender was made by an agent of the bail and one of the objections taken to it was that the 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 Meddowscroft 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 bail and principal, that it is to be effected as circumstances shall require, and is not a personal power or authority to be executed by the bail only. Lord Ellenborough, in Fisher v. Fellows (5 Esp. Cas. 171) allowed bail to recover against his principal the expenses in sending after him to take him for the purpose of making a surrender. 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 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 recognizes 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 recognizance 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 anything 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 the 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 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 the goal.

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 on 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 like principals' goalers, 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 recognized in Shower (anonymous case, 214) where it is said by the court, that bail are but goalers, 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 thelanguage of one of the cases, can there be any reasonable doubt but a sheriff, in such a case, would have a right to pursue and arrest his prisoner in a neighboring state; and, by parity of reasoning, bail must have the like authority. The cases I have referred to are sufficient to show that the law considers the principal as a prisoner whose goal 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 may 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 down 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 being shown by the defendant to render the entry lawful. That the bail may break open the outer door of the principal's [house], 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 circumstances 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 effect the liberty of the subject, as it would make it extremely difficult to procure bail.

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 favor 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.


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