Williams vs. Bacon, 10 Wend. 636

By the Court, Nelson, J. It is well settled in England that a person in custody of the marshal or sheriff on a críminál charge, before or after conviction, is subject to a civil action, if leave of the court or of a judge in vacation is first granted. 1 Chitty’s Cr. L. 661. Foster’s Cr. L. 61, 2. Tidd’s Pr. 306. 2 Archb. Pr. 122. 2 New. R. 245.

The defendant is not within the rule privileging suitors and witnesses from arrest whilst going to, attending at or returning from court; for if so, the rule allowing criminals in custody to be charged in civil actions in the usual way would not have been established, for the privilege would have been an answer to the suit. It would be unjust and unreasonable to extend this privilege to cases of this kind ; for it must continue, if it exist at all, during the whole period of the criminal custody; it might and would lead to great abuse.

There is no pretence that the criminal proceeding in this case was a mere pretext to bring the defendant within the jurisdiction of the court for the purpose of proceeding against him civiliter. The argument of the defendant’s counsel in this particular is not supported by the facts of the case. Had such fact appeared, the defendant would have been discharged. As it is, the motion is denied, with costs. GENERAL RULES. (ADOPTED JANUARY TERM, 1884.) . I.

In all cases in which parties are required to submit causes originating in a justice’s court on points or briefs, if the cause be called on the calendar and only one of the parties appears, the proof or admission of notice shall be filed, and the party appearing shall, on the second Friday of term, have a rule entered for affirmance, reversal, or whatever else he may be entitled to, provided the opposite party shall not previous to that day have submitted points or a brief on his side; and further, although such causes be not called on the calendar in their regular order, either party shall be at liberty on the second Friday of term, on filing proof or admission of notice, to move for such judgment as he may be entitled to, which judgment shall be accordingly entered, unless the opposite party do forthwith appear and submit his points or brief—the rule specifying that no one appeared to oppose.

II. When a rule is obtained, either at a general or special term, by default, the counsel obtaining the same shall endorse his name as counsel on the paper containing the proof or admission of notice, and the clerk in entering the rule shall specify the name of such counsel.