The weekly standard. [volume] (Raleigh, N.C.) 1869-18??, 1870-12-07
Judge Bonds Decision in the Bergen
a Case. t .-a

| Case. t 1
District Court of North Carolina, in Cham.
bers-Ha6eas Corpus-In the matter Of B.
G.. Bergen. 81 siz.sl
1t appears from The return of the marshal
in this case that he holds the prisoner, Ber-
gen, in custody by-yirtue of three writs of
capias adj respondendam issued out OF the
| Circuit Court of the United States for the
District of North Carolina in trcspass for
assault and battery and false imprisonment
of the plaintiff. 1.rr r.. -
Chap. 1, Title TX, subsection 149 of the
code of civil procedure of North Carolina,
provides that defendant may be arrested
in an action for the recovery OF damages on
course of action not arising out of con-
tract x A* When the
action is for an injury to person or charac-
ter.
Sec $50 of the same chapter tprovi6es
that an order for the arrest of the defend
ant must be obtained from the court in
which the action is brought or from
Judge thereof" and section 1871 provides
that the order may be made when it shall
appear to thevcourt or Judge thereof by the
affidavit of the. plaintiff or of any other per.
son that a sufficient cause of action exists,
and that the case is one of those mentioned
in section 149. .-
The act of Congress approved March 2,
1867, requires the Courts of the United
States to conform their proceedings in all
| cases of arrest upon mesne process to the
mode of practice prescribed by law in the
several States. ..ri.F i'm
1t is clear from these provisions of the
code of North Carolina that the plaintiff in
| an action is not given an absolute right to
the arrest of defendant. -f
The laws of the State have been careful of
the liberty of the citizen and have placed this
| power to arrest in the discretion of Judge
or Of a court. r6aeK III .Y1
The language of the Code is permissive
ony The words are not that he shall make
the order when the plaintiff has made the
required affidavit, but that the order may
be made. Before such order can be issued
there must have been the exercise of the
| judicial mind
| In these cases no such order has been
asked or granted. The suit is commenced
by the assuring of the capias by the plain
tiff or by the clerk at their suggestion
There has been no exercise of judicial dis
cretion. ts,...i+vt
No summons issued to commence the ac-
ton as in ordinary practice, but upon the
making of what was considered by plaintiff
sufficient affidavit the summons was altered
into a capias ad respondendum and the de
PENDANT arrested To do this is not within
the power of the plaintiff. Tie act of Or
dering the arrest of the party is judicial
and not clerical act, as is further shown by
section 152 of the code, which provides that
the Judge before making the order shall re-
quire the plaintiff to furnish security to pay
all damages sustained by defendant.
What amount of security the plaintiff
shall give and the amount and character of
bail of defendant are matters for the exer-
else of this discretion The law by making
it necessary that the Judge should decide
whether to make an an order of arrest or
not-what security or bail the plaintiff and
defendant should give, has endeavored to
guard this power of imprisonment by every
precaution for the protection of the liberty
of the citizen.
The code has not left the power to an angry
plaintiff in a case of simple assault and
battery, to fix his damages at any exhorbi
tant sum he pleases in order that the clerk,
under the old practice shall require bail
in double that sum, so that the defendant
might be imprisoned because he could not
give IT, This would be the consequence
were the proceedings in these cases sustain
ed. There has been NO judicial act fixing
the amount of plaintiff security for the
damages sustained by defendant provided
the plaintiffs fail in their suit.
While the bail required of the defendant
under the practice prevailing before the
adoption OF the code in 1868, is fixed at
twenty-eight thousand dollars.
1t has been suggested by counsel that il
would he a great inconvenience if parties
were required to follow the Judges abou
the circuit to obtain such orders of arrest
But the inconvenience to a defendant who