Francis and another against Lewis, 11 Conn. 200

J. The plaintiffs in error preferred their complaint to two justices of the peace, against the defendant, on the 4th vol.

section of the statute relating to Masters and Servants. Tit. 64. p. 310. Upon this complaint the justices issued a warrant, in virtue of which the defendant was arrested, and brought before them. On an enquiry into the facts stated in the complaint, the justices found the defendant not guilty, and discharged him from the arrest. The complainants, conceiving that the justices erred, in some interlocutory decisions made by them, filed their bill of exceptions, and brought the present writ of error to the superior court.

The case was reserved for our advice ; and a motion is now made to erase it from the docket, on the ground that a writ of error will not lie, and of course, that the superior court has no jurisdiction of the cause. It is admitted, that if the proceedings under this statute are criminal in their character, this writ of error does not lie ; and that the motion must prevail. Is then a prosecution under this

section of the statute civil or criminal ? This is the whole en-quiry. In the case of Hinman v. Taylor, 2 Conn. Rep. 257. the question was much discussed, whether the form of the process. or the object and end of it, decided the character of the proceeding. Swift, Ch.

J. denied that the form of the process decided the character of the action ; and he insisted, that “ to constitute a criminal suit, some punishment must be inflicted in behalf of the state.” On the other hand, Gould, J. contended, that it is the form of the proceeding, and not the cause or object that decides its character, whether it be civil or criminal. Now, whether we adopt the one criterion or the other, it seems equally difficult to resist the conclusion that the proceeding in question is strictly criminal. In the first place, it is upon complaint. The process is forthwith.

The defendant is arrested, and brought before a court of enquiry. He pleads in custody; and if found guilty, is sentenced to the house of correction, or the common gaol. In all this, is there a single feature of a civil suit ? It is, indeed, said, that here is no informing officer; that the state is not a party ; that the complaint is preferred, by an individual ; and that the only object is to obtain redress for a civil injury. Were this complaint preferred, by a public prosecutor, there could be no doubt of the criminal character of the proceeding.

Does the mere fact that the complaint is exhibited, by the individual injured, alter its character, and make it a civil proceeding? An appeal of murder is a suit between the plaintiff and defendant ; yet it has always been holden to be criminal in its character; and if the appellee be acquitted, he cannot after-wards be indicted for the same offence. 2 Stra. 856. 4 Bla. Com. 315, A complaint to obtain surety for the peace, or general behaviour, is always exhibited by an individual. But is it therefore a civil proceeding?

And so again, under the laws of the United States, if a sailor who has signed the shipping articles, shall, in any port or place, desert, or absent himself from his vessel, without leave, a justice of the peace may, on the complaint of the master, issue his warrant to apprehend and bring the deserter before him ; and upon finding the facts stated in the complaint to be true, may commit him to the house of correction or common gaol, there to remain until the vessel shall proceed on her voyage, or until the master shall require his discharge. And is this a mere civil suit between party and party ?

The object of a civil suit, whatever may be the form of proceeding, is always and uniformly the same. It is to obtain redress for an injury suffered. On this ground, the decision pro ceeded in the case of Hinman v. Taylor. Hosmer, J., says: an action for money had and received is no more the redress of a civil injury, than a suit to obtain the benefit of this law;" and the case is compared to an action on a note or book debt, were the legislature to authorise a forthwith process, in those cases. But what is the object in this proceeding ? No pecuniary compensation for an injury done, is either sought or obtained.

Nor is there redress for such injury, in any other form. For it is idle to say, that the imprisonment of a refractory apprentice, for thirty days, affords any redress to the master, for an injury already sustained. True it is, that the stubborn apprentice is punished;-and true it is, that by it, his future good conduct may be secured : and true it is also, that the example may be salutary in its influence upon others in his situation. And if these, or some one of them, be not the objects of the proceeding, the imprisonment is a cruel mockery. It affords not the shadow of redress.

The argument for the plaintiffs in error supposes, that a man may be seized on a forthwith process ; he brought before a court of enquiry, compelled to plead in custody, be committed to the house of correction, or to the common gaol, and there imprisoned, for thirty days, without bail or main prize ; and all this, in a mere civil suit between plaintiff and defendant. Before we thus decide, we may surely require that some proceedings in a civil cause, bearing some remote analogy to this, should be produced.

That under the statute of bastardy, has been pressed upon us, and it certainly bears a stronger resemblance to the present case, than any other which has been put. There is, indeed, a similarity in the modes of proceeding. But the ends and objects, we have seen, are entirely dissimilar. In the one case, redress for a civil injury is sought and obtained. In the other, no such redress is either sought or obtained. In the one case, imprisonment forms no part of the judgment, and is never suffered, except for the purpose of securing a compliance with the order of the court. Here, imprisonment is the sentence.

No other judgment, upon the finding of guilty, can be rendered. The court has no discretion, except only in regard to time. It is said again, that here is no violation of any public law; and, therefore, the proceeding is not criminal. The inference does not follow. What public law has the sailor, who deserts his ship, violated ? Or he of whom surety of the peace is demanded ? It is enough that

an act has been done, which, under a general law of the land, subjects the party to imprisonment, as a punishment. And it is no answer to say, that there has been no infraction of any

article in our criminal code. We would advise the superior court, that the cause be erased from the docket. The other Judges were of the same opinion. Cause to be erased from the docket.