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Smith v. Jones.

law extends to persons discharged from arrest by bankruptcy or insolvency proceedings; or where the law forbids arrest for the collection of demands. The right is afforded by the law not so much for witnesses as for parties to suits. Some cases assert that it is a privilege of the court and not of the witness. Other cases incline to the idea that it is a privilege of parties rather than of courts. But that is a distinction without difference. The idea is the same. Courts exist for the benefit of parties. It is a policy of the law established for the facilitation of the public business. It is a protection thrown about a witness more for the sake of others than himself. It is clear that a person ordering an arrest of a witness may be punished for contempt of court for interference with its business.

It is, at most, a conditional or contingent right of the witness. He may take it or not as he pleases. All the authorities affirm that the privilege may be waived. Therefore the arrest cannot be void; is only voidable. The arrest remains valid until avoided. And the witness can avoid the arrest only by applying to the court for a discharge. He waives the privilege unless he applies for a discharge.

The plaintiff complains that a refusal to uphold his action refuses him a remedy. That is not so. We have just intimated what the proper remedy is. It is an application for a discharge from the arrest. He may be discharged by a judge upon summary motion. He may sue out a habeas corpus. He may procure his writ of protection in advance of starting for or from court, if circumstances make it reasonable to ask the mediation of court for the purpose. The law does not declare that a witness shall not be arrested, but gives to him the right to free himself from arrest, if he desires to, and points out several ways by which it may be accomplished. It is not a right so much to avoid being arrested, but is a right to terminate the arrest. It is said however that a person may be under such pressure of imprisonment as to be powerless to obtain the action of a court or judge before suffering actual incarceration. This would not often happen. A writ of protection would ordinarily prevent the dilemma. An officer might be liable for an abuse of authority, if he exceeds his duty and acts roughly and oppressively. And of course an action would lie against the creditor who proceeds maliciously and without probable cause.

How can a creditor know that his debtor, who is a witness, will

Smith v. Jones.

insist upon the privilege, until the debtor asserts it? And how can he know that the court will grant a discharge if asked for? It is to some extent a discretionary matter with a court or judge, whether a witness shall be discharged upon arrest. How can this discretion be anticipated by a creditor? And why should the creditor be required at his peril to correctly settle the question whether the debtor is at court in good faith or not, or whether he has overstayed his privilege, or whether unnecessarily loitering on the way, judicial questions that can be easily and summarily settled by a judge in or out of court without much expense to parties. It is not at all unreasonable to cast upon the court, and to relieve parties from the responsibility of such questions.

The precise question here presented has not received very much attention from courts, and there is an almost total absence of judicial expression in favor of the plaintiff's position where the privilege is at common law and not by statute. The remedy by action was established long ago in New York by statutory enactment, which is an implication that the remedy did not exist there at common law. And this accounts for intimations in cases in that State that damages for a breach of the privilege are recoverable. Paine and D. Prac. Arrest. Snelling v. Watrous, 2 Paige, 214; Sallinger v. Adler, 2 Robt. 704. Some English statutes give a right of action in some cases, or establish other special remedy, for a violation of the privilege of freedom from arrest; from which an implication arises that no such remedy exists at the common law in that country. Tidd's Practice lays down the various remedies that are available for a violation of the privilege from arrest belonging to witnesses and all other persons or parties in necessary attendance upon courts, and omits all mention of a right of action for damages. Text writers generally are silent upon the question. In 2 Add. Torts (4th Eng. ed.), 796, it is said however that "the privilege does not form the ground of any action at law." And in Cooley Const. Lim. (5th ed.) 162 (*135), it is said, in note: "The arrest is only voidable; and in general the party will waive the privilege unless he applies for discharge by motion or on habeas corpus."

Not many decided cases touch the point. The early experimental actions were against officers, and all of them failed. But much of the reasoning of the courts really went against any action, disregarding any distinction between officer and party. The early cases are cited and commented upon in Carle v. Delesdernier, 13 Me. 363.

Strout v. Packard.

See Chase v. Fish, 16 id. 132. Some phases of the question are touched. in later cases. Wilmarth v. Burt, 7 Metc. 257; Aldrich v. Aldrich, 8 id. 102; Thompson's case, 122 Mass. 428; s. c., 23 Am. Rep. 370; Person v. Grier, 66 N. Y. 124; s. c., 23 Am. Rep. 35. Several English cases take strong ground against the maintenance of such an action. In Yearsley v. Heane, 14 M. & W. 322, it is said: "The protection is limited to the fact of the individual so arrested being entitled to be discharged." In the same case it was said by POLLOCK, C. B., "did the legislature mean to give more than this, that if the party was arrested he might be discharged, whereby he has the full benefit of the protection? I think not." Ewart v. Jones, 14 M. & W. 774; Stokes v. White, 1 Crom. M. & R. 223; Rideal· v. Fort, 11 Ex. 847; Magnay v. Burt, 5 Ad. & El. 381. In a note to Stokes v. White, supra, in the edition by Hare and Wallace, careful annotators, it is said, upon the authority of the cases determined in the Court of Exchequer Chamber, that "an arrest by the sheriff, under a writ from any of the queens' courts, of a person privileged from arrest by reason of attendance as a witness under the process of another court, does not form the ground of any action at law for damages, but is only the subject of an application to the court, under whose authority the party had been compelled to appear as a witness; the privilege being, not that of the person, but that of the court, and therefore of discretionary allowance."

Exceptions sustained. WALTON, BARROWS, DANFORTH and LIBBEY, JJ., concurred.

STROUT V. PACKARD.

(76 Me. 148.)

Evidence-joint assault-conspiracy.

In an action against several for a joint assault, evidence of prior and subsequent misconduct on the part of some of the defendants, tending to show a conspiracy, implicates only those committing such acts.

A

CTION for joint assault. The opinion states the case. Verdict against all the defendants.

VOL. XLIX-76

Strout v. Packard.

A. A. Strout, H. B. Cleaves, and Strout, Gage & Strout, for plaintiff.

Charles F. Libby, for respondents.

SYMONDS, J. This was an action against seven defendants, charging them with a joint assault upon the plaintiff, and claiming to recover damages therefor. The act of assault was the throwing of a piece of coal which struck the plaintiff over the eye and injured him seriously. It was of course the act of one person. To show a concert of action on the part of the defendants, such as to affect them with a joint liability for this act of one, evidence was received of the misconduct of some of the defendants at other times, which plaintiff claimed tended to prove a general design on their part, as upper classmen in Bowdoin College to harass the members of the freshman class of whom the plaintiff was one.

The court said to the jury: "Evidence was offered which you will remember, as to the acts of some of these defendants in other cases at other times. It is necessary that you should understand precisely what that evidence was offered for and what use you can properly make of it. It was offered and admitted simply to establish, so far as it might in your minds tend to establish, what the common design of the defendants was upon that night. Evidence was offered to show what some of the defendants and the parties with whom they were out on other evenings shortly before did at the rooms of other freshmen. Now this evidence was admitted only, because as to those of the defendants who did not actually throw the coal, the proper decision of the question may require evidence of the intention and purpose for which the seven defendants were out together that night, and what kind of acts and invasions of the freshmen in their rooms were to be expected when parties were out upon such an expedition, and so to indicate what kind of a concert of action subsisted between the defendants on the night when the plaintiff was hurt."

The defendants seasonably requested the instruction, "that evidence of such (prior or subsequent) misconduct on the part of any of these defendants is not evidence against the other defendants not participating in the acts." This request was refused by the court and the limitation which it contained was not included in any of the instructions given to the jury in the charge.

Strout v. Packard.

The averment of a con

The declaration alleged a joint assault. spiracy was of no account except that under it it might be proved in any legal way that the hand which threw the coal carried into execution the purpose of the seven. Evidence of prior or subsequent misconduct on the part of some of the defendants was only admissible for the purpose of proving as among them the existence and character of the combination or conspiracy alleged. The fact that a conspiracy exists or the extent to which it goes, is not to be proved as against A., by the declarations or the acts of B., with which no connection on the part of A. is shown, and which do not appear to have been made or done in furtherance of a common design entertained by both. That a joint purpose of the seven was carried into effect by throwing the coal in this instance, was not to be proved by showing previous acts of combination and torts committed in pursuance thereof by three or four only. Precisely the limitation which the request contained was required in the legal statement of the case; that the testimony to misconduct on the part of some of the defendants before and after this assault tending to show a combination among them, and offered and received only as "evidence of the intention and purpose for which the seven defendants were out together that night, and what kind of acts and invasions of the freshmen in their rooms were to be expected when parties were out on such an expedition, and so to indicate what kind of a concert of action subsisted between the defendants on the night when the plaintiff was hurt," should have been limited in its application to those defendants against whom such acts of prior or subsequent misconduct were proved.

The evidence was offered only for the purpose of proving the presence and the scope of a joint intent in the single act whether there was on this occasion a common purpose among the several defendants and whether it extended to the throwing of such a missile under such circumstances. The previous act of one was not evidence to prove this against another who did not participate in that act. The mind of one is not to be revealed by the act of another, till some relation between the two is shown in the doing of that act.

In the introduction of evidence, the court was careful to limit the effect of the admissions said to have been made after the fact, to the president of the college by several of the defendants, so that they should be regarded by the jury in each instance as evidence

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