
    Swift against Chamberlain.
    Where an elector, on the day of electors’ meeting, haying voted, retired to a house in the neighbourhood, while the proper officers were counting the votes ; it was held, that such elector was, at that time, attending on the business of the election, and was, therefore, exempted from arrest, within the constitution of this state, art. 6. sect. 8.
    The mere silence of an elector, at the time of his arrest, is not a waiver of his privilege.
    The elective franchise is not merely a public, bat a personal benefit, the privation of which, maliciously, is an actionable injury.
    But for a violation of an elector’s privilege, though maliciously, under lawful and regular process, an action of trespass will not lie; the proper remedy being an action on the case.
    THIS was au action of trespass vi et armis, tried at Bitch? field, August term, 1820, before Brainatd, J.
    The defendant admitted, that he had taken the plaintiffs body, and committed him to prison, but justified under a regular writ of attachment, which, as an officer, he then held against the plaintiff. The plaintiff claimed, that he was, at that time, an elector, which was known to the defendant; and that the writ was served on him, on the day appointed by law f°r tbe meeting of electors for the choice of state officers, while he was attending, as an elector, at such meeting : that after he had given in his votes, and after all the votes of the other electors were given in, he retired to a public house in ^ neighbourhood, while the proper officers were counting the votes, where, during that time, he was arrested. He, ■ therefore, claimed, that by virtue of the 8 th section of the 6 th article of the constitution of this state, the arrest was illegal. The defendant claimed, that the plaintiff, at the time of the arrest, was not attending the meeting as an elector; that he then waived his privilege of protection, if any he had, as he did not expressly claim it; and that if he had any cause of action, his proper remedy was an action on the case. The judge instructed the jury, that if they should find, that, at the time of the arrest, the plaintiff was in the exercise of his franchise as an elector, and did not waive his privilege of protection, the present action was sustainable, and they must return a ver- i diet for the plaintiff: But if they should find, that the plain- ' tiff, at the time of the arrest, was not in the exercise of such franchise ; or that he waived his privilege of protection ; they , must return a verdict for the defendant. The judge further remarked, that the protection of an elector from arrest being a right secured by the constitution, a waiver of it could not be inferred from mere silence; and that such protection compre- ¡ hended the time of reasonably going to, attending on, and returning from, electors’ meeting.
    
      
      June 21.
    
    
      
      Litchfield,
    
    The jury having given a verdict for the plaintiff, the defendant moved for a new trial, on the ground of a misdirection.
    
      P. Miner and J. W. Huntington, in support of the motion,,
    contended, 1. That there may be a waiver of a personal privilege, by silence. An officer is not bound, officially, to notice a right of privilege, or to grant it without a claim. It is to be stated, and insisted upon ; else it will be presumed to be waived. And the circumstance of its being a constitutional privilege, does not place it on any different ground from that on which a statute or common law privilege rests. GeyePs lessee v. Irwin, 4 Dali. 107.
    2. That upon the facts disclosed, no action could be sustained against the defendant. First, because the arrest is a mere breach of privilege, for which the remedy is, and. ought to be, by discharge only. The object of the constitutional provision, is two-fold : for the benefit of the public, that the state may be organized in all its departments, and the rights of the whole community protected ; a,nd for the benefit of the elector, to enable him to exercise his franchise. It is properly a privilege, for public and individual good united. If the privilege is invaded, by arresting the person of the elector, the remedy best adapted to effect this two-fold object, is by discharge. Secondly, because an officer, in the execution of legal process, ought not to be subjected to the loss of time and money in defending suits brought against him for invasions of privilege, nor to run the hazard of paying damages, upon proof made by the party suing. In any form of action, the responsibility of determining all the necessary facts to constitute the privilege, is thrown upon the officer ; and he has no means of determining it with certainty. According to the doctrine claimed by the plaintiff, the law places the officer in a situation, where he is compelled to judge, and yet is to judge at his peril; if he forbears to arrest, he is liable to be sued by the creditor ; if he makes the arrest, he is sure of being har-rassed by the debtor. This evil may be avoided, by requiring the elector to take advantage of his privilege, by way of njption, or application for discharge only. Thirdly, as the privilege is in derogation of common right, it ought not to be made a ground of recovering money, by way of damages, in a suit at law.
    These positions are supported by decisions in analogous cases. First, as to a witness, whose privilege is given by the common law. In Vandevald v. Lluellyn, 1 Keb. 220. recognized by De Grey, Ch. J. in Cameron v. Lightfoot, 2 Bla. Rep. 1193. it was held, that a witness arrested, during his attendance, has no remedy but by habeas corpus to deliver him. See Swift’s Ev. 108. Com. Dig. tit. Privilege. A. 1. Secondly, as to a party to a suit, who also has a common law privilege. In Cameron v. Lightfoot, 2 Bla. Rep. 1190. 1194. which was an action of trespass, De Grey, Ch. J. said, “ In none of the books is there any intimation of an action being maintainable for such an arrest, but the question has always been merely the delivery of the party; process still continuing legal, and capable of being executed at a subsequent time, when privilege does not intervene.” In Brown v. Getchell & al. 11 Mass. Rep. 11. it was decided, that the protection, which the law affords to a party in a suit, is a personal privilege, of which he may avail himself, to prevent or defeat an arrest. Thirdly, as to persons protected by 20 Geo. 3. c. 64. s. 2. If arrested, their remedy is by discharge only. Tarlton ¡ v. Fisher, Doug. 671. Fourthly, as to certificated bankrupts. If arrested, their remedy, also, is by discharge only. In Tarl-ton v. Fisher, Doug. 676. Buller, J. says : “ In cases of bankrupts or insolvents, what is done ? Hundreds have been arrested ; but there never was an instance of an action against the sheriff or his officers, in such cases.” And in Cameron V. Lightfoot, 2 Bla. Rep. 1195. De Grey, Ch. J., referring to the case of certificated bankrupts, says, “ that in none of the cases has an instance been produced of an action for false imprisonment being brought.” Fifthly, as to persons entitled to privilege of parliament. Formerly, this privilege was takenl advantage of, by writ of privilege or plea; now, by motion.* Pitfs case, Com. Rep. 444. S. C. Holiday v. Pitt, 2 Stra. 985. This may be taken advantage oí, by motion, because it is an irregular execution of legal process. See 1 Bla. Comm. 166. 10 Co. 76. b. 6 Co. 52. b. 54. a. Cro. Jac.; 3. Sixthly, as to foreign ambassadors and their servants.; If arrested, they, also, are to be discharged, on motion. Com. Dig. tit. Ambassador. B. Seventhly, as to members of the i general assembly. In analogy to the English law, they, also, if arrested, are to be discharged ; but there is no precedent of an action.
    
    3. That if any action can be maintained, it cannnot be trespass, but must be case, for abuse of legal process ; in which science and malice must be the gravamen. The service of a regular process, according to forms prescribed by law, upon a person, or upon estate, which, in itself, is the subject matter of service, can never lay the foundation of an action of trespass against the officer making such service, unless by the provisions of constitutional or statute law, it is declared to be void. First, because, if such action were sustainable, the officer would be subjected for obeying the order of the court. 15 East, 614. perGrose, J. Secondly, because itwould be collaterally impeaching the proceedings of the court; but if case is brought, where the gravamen is malice and want of probable cause, the proceedings of the court are not impeached. The principle advanced under this head, is supported by all the authorities. Waterer v. Freeman, Hob. 205. 260. 
      Parsons V. Lloyd, 3 Wils. 341. 345. per De Grey, Ch. J. Morgan v. Hughes, 2 Term Rep. 225. 231. per Ashhurst, J. Belk v. Broadbent & ux. 3 Term Rep. 183. 185. per Lord Kenyon. Nichols v. Thomas, 4 Mass. Rep. 232. Rogers v. Brewster, 5 Johns. Rep. 125. Patrick v. Johnson, 3 Lev. 404. Reynolds v. Corp, 3 Caines 267. Cooper v. Booth, 3 Esp. Rep. 135. cited 1 Term Rep. 535. Luddington v. Peck, 2 Conn. Rep. 700.
    If this action can be supported, it must be on the ground that the arrest was utterly void. But the process was every way regular ; it was served according to the forms of law ; the person was ordinarily a subject of arrest under such process ; and it is not declared, either by the constitution or by statute, to be void. It is nothing more than an abuse of legal process, for which case is the proper remedy.
    
      Boardman, contra,
    contended, 1. That silence was not, of itself, a waiver of privilege. If it was not, then the fact of waiver was properly submitted to the jury ; and they have found that there was no waiver.
    2. That an action at law is sustainable against the defendant. It is undoubtedly a general principle, that an officer having a warrant, issued by a proper magistrate, commanding him to do an act apparently lawful, is justified in the execution of it, if he do it upon a proper subject, at a proper time, in a proper place, and in a proper manner. But, on failure in either of these particulars, he is liable. First, upon an improper subject : as if upon process against A., he take i?. 2 Selw. JV. P. 918. Secondly, at an improper time : as on Sunday. Wilson v. Tucker, 1 Salk. 78. Taylor v. Freeman, 2 Selw. N. P. 21. n. Thirdly, in an improper place : as out of the officer’s bailiwick. Tyler v. Johnson, cited 2 Bla. Rep. 834. Fourthly, in an improper manner: as by breaking an outer door. Lee v. Gansel, Cowp. 1. 6. Ratcliffe v. Burton, 3 Bos. & Pull. 223. Or, neglecting to return his writ. Com. Dig. tit. Return. F. 1. Or, taking the body, when property is offered. Hall v. Hall, 1 Root 120.
    Again, if the precept, though properly authenticated, command the officer to do an unlawful act;—as to make an arrest out of his bailiwick, or by breaking an outer door, or on Sunday, or to confine the person arrested in an improper place;—it is no justification. Nor is he excusable for arresting a person having an absolute personal exemption from arrest, and that general, and consequently presumed to be known. Such an exemption every man has, by law, on Sunday ; and every elector has, by the constitution, at the time and place of election.
    The right in question is not a mere privilege, which supposes some particular exception, on account of some public duty, or some particular private immunity ; but a right, secured, by the constitution, to nearly all the citizens of the state.
    But admitting the elector’s right to stand on the footing of a privilege ; whenever the privilege is for the personal benefit of the claimant, and is general in its nature, an action will lie for the violation of that privilege. Where the privilege is that of the public, or a mere private exception, the remedy is by discharge only.
    The inadequacy of the remedy forms a ground of distinction between those cases in which an action will lie, and; those in which it will not. Suppose a man is arrested just as he is about giving his vote; who can discharge him? No one, until the time of voting, has gone by. On this ground, what would the elector’s right be worth ? Can it be, that the constitutional guard has no higher sanction ?
    3. That if any action will lie, trespass is the proper one., The act complained of, was an act offorce, and the injury was immediate. An officer, in making an arrest, is always a trespasser, unless justified by his warrant. The malice, that dictated the proceeding, does not affect the form of action, but goes only to the damages. In almost all the cases before cited, in which an action has been sustained against an officer, that action has been trespass.
    
   H-jsmer, Ch. J.

Under the charge given to the jury, they must have found, that at the time of the arrest, the plaintiff was in the exercise of his franchise as an elector, and that he did not waive his privilege of protection. From the facts stated in the motion my mind would be led to the same result. Retiring to a house in the neighbourhood, while the proper officers were counting the votes, the defendant, on a fair construction of the constitution, was attending on the business of the election ; and mere silence, on his part, was no waiver of his privilege. Cameron v. Lightfoot, 2 Bla. Rep. 1190.

The jury were instructed, that if the plaintiff was in the exercise of his franchise, when arrested, and did not waive his protection, the action of trespass was sustainable ; but to this I cannot accede. I consider the elective franchise as a noble privilege ; and view it not merely as a public, but likewise as a personal benefit; and the privation of it, maliciously, as vin-dicable by an action on the case. King v. Coil, 4 Day 129. Ashby v. White, 2 Ld. Raym. 938. Sterling v. Turner, 2 Lev. 50. S. C. 1 Ventr. 206. Drewe v. Coulton, 1 East 563. n. Jenkins & al. v. Waldron, 11 Johns. Rep. 114. But the arrest, made in pursuance of a legal judgment and execution, was valid ; and the injury, if any, resulted from the malice, which prompted the proceeding. The officer acted by lawful and regular process, commanding the arrest in question ; and if he was not under the influence of abad motive, he is not responsible for his conduct to the plaintiff. The quo animo must be the gist of any action sustainable against the defendant ; and this enquiry is inadmissible to fix on him a trespass. 1 Chitt. Plead. 136. When the process of a court has been abused, trespass is the proper action, if the conduct of the officer was, in the first instance, illegal, and produced an immediate injury to the body ; as if the sheriff arrest out of his county ; or after the return day of the writ; or break open an outer door ; or, by any act of his, after the arrest, become a trespasser ab initio. 1 Chitt. Plead. 185, 6. But no such abuse of process exists, in this case ; and the only ground of complaint, is, a violation of the plaintiff’s privilege, for which no action of trespass has ever been sustained. 1 Chitt. Plead. 184. Luddington v. Peck, 2 Conn. Rep. 700. Tarlton v. Fisher, Doug. 671. Cameron v. Lightfoot, 2 Bla. Rep. 1190.

It was the duty of the officer, in compliance with the execution, to make the arrest, unless he had knowledge that the plaintiff was under the protection of his privilege. The arrest, per se, was not only valid, but in every view proper, admitting only the above exception ; and, in many cases, to make enquiry into the various facts, which confer on an individual the privilege of protection, and to decide them at his peril, would place an officer in a situation of extreme difficulty. He cannot administer an oath, nor compel the attendance or testimony of witnesses; and is without the means of coming to a satisfactory result. It ought always to devolve on the person arrested, with whom is the knowledge of the facts, to prove that he was under protection, and that this was known to the officer arresting him; and todo this, he must bring his action on the case, which is precisely adapted to , such an enquiry.

The other judges were of the same opinion.

New trial to be granted.  