Booraem & Co. v. Wheeler

12 Vt. 311

• Court: Supreme Court of Vermont
• Decided: February 15, 1840
• Status: Published

Opinion

The opinion of the court was delivered by

Collamer, J.

— Every citizen has a right to bring his debt- or into court by legal process, at all times; which process is by summons, by attachment of property, or by arrest of the body. There is, however, a paramount right or privilege of the courts or their suitors, without which the commencement of an action might be of little use, that is, that suitors and witnesses may attend court unmolested in their persons. This latter right is, however, to be asserted in such manner as to infringe or interrupt the former right as little as possible. It has never been held that a man’s property may not be attached,or he be served with a summons, while attending court as a witness or suitor. He is, then, subject to suit while in that condition. There is no mode provided by law by which a creditor or an officer can know in what capacity a man is attending court, or even that he is in attendance ; therefore there is nothing unlawful in arresting him on legal process. What is wanted, is, that the suitor or witness may give uninterrupted attendance on the court. Will this object be secured by abating the writ, so legally served ? Most clearly it will not, as the court he was attending will have closed its session long before the arrival of return day of the writ, when it can be abated. The abatement, then, will not tend to secure the legitimate object, and it may produce great evil to an innocent creditor by cost of abatement, and, perhaps, entire -loss of his debt, by an intermediate absconding of his debtor. The abatement then is useless, injurious and unnecessary. The legal object can be and always has been better secured by the summary proceeding of a motion to the court to release the person, for the time being, or by habeas corpus. Such we consider the analogy of levgal principles and such the weight of authorities.

Judgment affirmed.