against Ambassadors, &c. In others, the court is expressly required to discharge the defendant. (a) And it may be remarked, in general, that where the defendant is clearly entitled to privilege, as the arrest is irregular and unlawful, the court will discharge him upon motion; and not put him to the necessity of suing out a writ of privilege,(b) or of filing common bail,(e) but where the question of privilege from arrest is doubtful, the court will not, upon motion, discharge the party out of custody, but leave him to his writ of privilege.(d) And they will not discharge a defendant out of custody on common bail, on the ground of infancy ;(e) or that he was insane at the time of the arrest, (f) or afterwards became so;(g) nor will they discharge his bail, on the ground of the insanity of their principal, although a commission of lunacy may have issued against him, under which he has been found a lunatic.(h) The bail, however, may have a habeas corpus, to bring up their principal, notwithstanding his lunacy, in order to surrender him in their discharge. (1) And where the return to a writ of latitat stated that the defendant was insane, and could not be removed without great danger, and continued so till the return of the writ, the court of King's Bench refused an attachment against the sheriff.(k)

And

An arrest, when allowed, is made by the sheriff or his officers; or by the bailiff of a liberty of franchise.[A] The sheriff's authority is derived immediately from the court, except in counties palatine, where he acts by virtue of a mandate from the officer to whom the writ is directed: even there, if the writ be directed immediately to the sheriff, he is bound to execute it; and a bail-bond taken on the arrest is legal. (1) The officers of the sheriff are of three kinds, first, bailiffs in fee, or perpetual bailiffs, who have, by charter of prescription, the execution of writs within the guildable ;(aa) secondly, common bailiffs, (called [ *217 ] in the old books, bailiffs errant, (bb) who are usually bound with sureties in an obligation for the due execution of their office, and thence are called bound bailiffs;(cc) thirdly, special bailiffs, nominated by the plaintiff or his attorney, and appointed by the sheriff pro hac vice.(dd) The sheriff's warrant(ee) to any of these officers ought not to be made out,

(a) Ante, 199, 201, 212, 214, 15.

(b) 2 Str. 989. Fort. 159. Com. Rep. 444, S. C. 1 Ken. 125. 5 Durnf. & East, 689, but see 1 Wils. 278. 2 Blac. Rep. 788.

(c) Walpole v. Alexander, H. 22. Geo. III. K. B.

(d) 2 Barn. & Ald. 234.

(ƒ) 4 Durnf. & East, 121.

(e) 1 Bos. & Pul. 480.

(g) 2 Durnf. & East, 390.

(h) 6 Durnf. & East, 133. 2 Bos. & Pul. 362. 13 East, 355. 2 Chit. Rep. 104.

(1) 3 Bos. & Pul. 550, and see Highmore on Lunacy, 123.

(*) 4 Barn. & Ald. 279, but see 8 Dowl. & Ryl. 606.

(2) 6 Durnf. & East, 71.

(aa) For an account of the guildable, and how it differs from a franchise, see 8 Co. 125, a, Dalt. Sher. 185, and for the nature of the office of a bailiff in fee, see Dalt. Sher. 187. Gilb. C. P. 30. (bb) 3 East, 130. (cc) 1 Blac. Com. 346.

(dd) 2 Blac. Rep. 952. 4 Durnf. & East, 119. 1 Chit. Rep. 613, 14, (a).

[A] Where one not generally known as an officer makes an arrest, his authority if demanded must be shown. The State v. Curtis, 1 Hayw. 471. Arnold v. Stevens, 10 Wend.

514. Com. v. Field, 13 Mass. 321. The State v. Kirby, 2 Ired. 201.

until the sheriff have the writ in his actual custody; (f) And therefore, where the defendant was arrested before the officer had any warrant, and before the writ was delivered to the sheriff, the bail-bond was ordered to be delivered up to be cancelled.(g) So, where an attorney fills up the sheriff's warrant on a capias ad respondendum, after it is signed, sealed, and sent to him with a blank, this is bad. (h) And where the sheriff having directed a warrant to A. and all his other officers, to arrest B., and A. afterwards inserted therein the name of C; it was holden that the warrant was illegal, and the arrest by C. consequently void. (i)[A] But where the sheriff made a warrant to four jointly, and not severally, and one of them arrested the defendant, the court of Common Pleas, though they were of opinion that the arrest was not authorized by the warrant, would not interfere to discharge the defendant out of the custody of the sheriff, on entering a common appearance.(k) And a defendant is not entitled to be discharged out of custody, on the ground of his having been arrested upon a warrant, in which the names of the plaintiffs are not inserted conformable to the writ, if the defendant be not misled by the mistake; therefore, where the arrest took place on a warrant at the suit of three plaintiffs, which required the defendant to answer A. B. and two others, without naming them, the court of King's Bench held, that he was not entitled to be discharged.(l)

If the defendant reside within a liberty, the bailiff of which has the execution and return of writs, there should regularly be a non omittas; or if there be not, the sheriff for having execution of the writ, should make out his mandate, directed to the bailiff of the liberty.(m) And if there be two liberties in a county, and the sheriff make his mandate to the bailiff of one of them, who gives him no answer, he may, upon a non omittas, arrest the defendant in either liberty; (n) and even if the sheriff enter, and arrest the defendant in a liberty, without a non omittas, the arrest is good, though the sheriff may be liable to an action.(0)

[ *218 ]

*The arrest may be made at any time (except on Sunday,) before, or on the day of the return of the writ; and at any place

(ƒ) R. M. 1654, § 2. R. E. 15 Car. II. reg. 4, K. B. R. M. 1654, § 2. R. H. 14 & 15 Car. II. reg. 1, C. P. Stat. 6 Geo. I. c. 21, 8 53.

(n) 5 Co. 92, a, Gilb. C. P. 29. East, 335, 340.

(0) Gilb. C. P. 27. Fitzpatrick v. Kelly, M. 22 Geo. III. K. B. cited in 3 Durnf. & East, 740, and see 5 Durnf. & East, 687. 9 East, 341, 2. 7 Taunt. 311. 1 Chit. Rep. 375, in notis. 3 Barn. & Ald. 502. 1 Moore & P. 309. 4 Bing. 523, S. C.

[A] If the process is void the arrest is illegal. Tracy v. Williams, 4 Conn. 107. State v. Leach, 7 Id. 456. State v. Curtis, 1 Hayw. 471. And when the illegality is apparent on the face of the process the officer who executes it is a trespasser. Lampson v. Laudon, 5 Day, 508. Grumon v. Raymond, 1 Conn. 40. Reynolds v. Corp, 3 Caines, 269. Griswold v. Sedgwick, 6 Cow. 456. Sanford v. Nichols, 13 Mass. 280. Pearce v. Atwood, 13 Id. 324. Wood v. Ross, 11 Id. 277. Com. v. Foster, 1 Id. 488. Wells v. Jackson, 3 Munf. 458. So an arrest of one named by a wrong name in the process, though he be the person intended, subjects the officer making it to an action for false imprisonment, unless the party arrested was known by both names. Griswold v. Sedgwick, supra. Mead v. Haus, 7 Cow. 332. Gurnsey v. Lovell, 9 Wend. 319; or of the wrong person; The Bank v. Howard, 14 Mass. 184. Smith v. Boucher, 1 Id. 76; or when made after the return day of the writ ; Stoyel v. Lawrence, 3 Day, 1. Prescott v. Wright, 6 Mass. 22; but it seems the arrest may be made on the return day. Adams v. Freeman, 9 Johns. 117.

within the county, except where the defendant is privileged. But it cannot be made, between the day of the return and quarto die post, by original.(a) And, by the statute 29 Car. II. c. 7, § 6, "no person or persons, upon the Lord's day, shall serve or execute, or cause to be served or executed, any writ, process, warrant, order, judgment, or decree, except in cases of treason, felony, or breach of the peace: but the service of every such writ, &c. shall be void to all intents and purposes ;(6) and the person or persons so serving or executing the same, shall be as liable to the suit of the party grieved, and to answer damages to him for doing thereof, as if he or they had done the same without any writ, &c."

In construing this statute, it has been holden, that an arrest cannot be made on a Sunday, upon a capias utlagatum;(c) or for non-payment of a penalty upon conviction. (d) And the statute extends not only to process properly so called, but also to all notices on which rules are made: and hence it has been holden, that service of notice of plea filed on a Sunday is void, by construction of the statute. (e) Where A. was arrested at the suit of B. and discharged, the sheriff not knowing that there was also a detainer in his office at the suit of C. and on the Sunday following he was arrested at C.'s suit, the court discharged him out of custody;(f) considering the arrest on the Sunday, as an original taking, or a retaking after a voluntary escape;(g) and in either case it was prohibited by the statute. But after a negligent escape, the defendant may be retaken on a Sunday; and that either by the officer upon fresh pursuit, or by virtue of an escape. warrant ;(h) for this is not an original undertaking, but the party is still in custody upon the old commitment. Also it is holden, that bail may take their principal on a Sunday, in order to surrender him; (2) for this is not by virtue of any process at all. And it should seem that process of contempt being of a criminal nature, may be served upon that day.(k) But a rule nisi for an attachment for non-payment of money pursuant to the master's allocatur, cannot be so served.(7)

The arrest must be made in the county into which the process issues; Therefore, an arrest in the city of London on a bill of Middlesex, is irregular, even though it took place on the verge of the county of

Middlesex, if there be no dispute as to the boundaries. (aa) [*219 ] And it is a rule, that no man can be arrested in his own house,

provided the outer door be shut ;(bb)[A] or in the king's presence; (cc) or

(a) 1 Sid. 229. 2 Esp. Rep. 585.

(6) 1 Salk. 78. The service of process on a Sunday, being absolutely void by the statute, cannot be made good by any subsequent waiver of the defendant, as by his not objecting until after a rule to plead given. 3 East, 155. 8 East, 547, (b). (e) Barnes, 319.

(e) 8 East, 547. And see 5 Barn. & Cres. 406. to the validity of contracts entered into on Sunday. (f) 5 Durnf. & East, 25.

(h) 2 Ld. Raym. 1028.

(d) 1 Durnf. & East, 265.

8 Dowl. & Ryl. 204, S. C. 4 Bing. 84, as

(g) Barnes, 373.

2 Salk. 626. 6 Mod. 95, S. C.

(i) 6 Mod. 231. 1 Atk. 239, but see 2 Blac. Rep. 1273.

(k) 12 Mod. 348.

1 Atk. 55. Willes, 459.

(aa) 3 Barn. & Ald. 408.

(1) 8 Durnf. & East, 86.

(bb) 5 Co. 91, but see Cowp. 1. 2 Moore, 207. 8 Taunt, 250, S. C. (cc) 3 Blac. Com. 289.

[A] In order to make an arrest in a civil case, an outer cannot be broken open, but an inner may. Oysted v. Shed, 13 Mass. 520. Allen v. Martin, 10 Wend. 300. Williams v. Spencer, 5 Johns. 352. Fitch v. Lovland, Kirby, 386. Hibbard v. Mack, 17 Johns. 127. And if the debtor resist and commit an assault where the sheriff has broken open the outer door

within the verge of his royal palace, (dd) (except by an order of the board of green cloth, or unless the process issue out of the palace court;)(e) or in any place where the king's justices are actually sitting.(f) So it has been decided, that process cannot be lawfully executed in Kensington palace, which is privileged for this purpose as a royal residence.(g) And an arrest within the tower of London, would it seems be bad, without leave obtained from the governor.(h) But an arrest, within the verge of the king's palace, has been holden, in the Common Pleas, to be no ground for discharging the defendant out of custody.(i) The privilege of the parties to a suit, and their witnesses, of which we have before spoken,(k) may also in some measure be considered as of a local nature: And of the same kind as that of clergymen, who, by several ancient statutes,() are privileged from arrest, in going to and returning from church, or performing divine service; but not if they stay in church, with a fraudulent design of eluding the process of the law. And it is said, that the party grieved may have an action upon these statutes.(m)

In making the arrest, the sheriff or his officer, it has been said, must actually seize or touch the defendant's body :(n) but this does not seem to be absolutely necessary; for if a bailiff come into a room, and tell the defendant he arrests him, and lock the door, that is held to be an arrest; for he is in custody of the officer. (o)[A] And it is not necessary that the officer who has the authority, should be the hand that arrests, nor in the presence of the person arrested, nor actually in sight, nor is any exact distance prescribed: it is sufficient if he be near, and acting in the arrest.(p) If the defendant be wrongfully taken, without process, (q) or

(dd) Stat. 28 Hen. VIII. c. 12. 3 Inst. 141. Ld. Raym. 978. 3 Salk. 91, 284. 6 Mod. 73. Holt, 590, S. C. 1 Man. & Ryl. 452. Id. 457, (a).

(e) 3 Durnf. & East, 735.

(f) 3 Inst. 140, 41. 2 Mod. 181, but see 1 Lev. 106.

(g) 10 East, 578. 1 Campb. 475.

(h) 2 Chit. Rep. 48, 51.

But see 1 Moore & P. 309.

4 Bing. 523, S. C.

(i) 7 Taunt. 311, and see 1 Chit. Rep. 375, in notis. 3 Barn. & Ald. 502. (k) Ante, 195, &c.

(2) 50 Edw. III. c. 5. 1 R. II. c. 15, and see 1 Mar. sess. 2, c. 3.

(m) 12 Co. 100. In 5 Bac. Abr. 565, it is said, that the arrest of a clergyman under civil process, either in going to church, to perform divine service, or in returning from thence, on any day, is a false imprisonment. But from several later decisions it may be collected, that if any action would lie, which is doubtful, it should be an action on the case, and not an action of trespass, against the sheriff or his officers. 3 Wils. 341. 2 Blac. Rep. 1087, 1190. Doug. 671.

(n) 1 Salk. 79, and see 1 Ry. & Mo. 26. 1 Car. & P. 153, S. C. 6 Barn. & Cres. 528. (0) Cas. temp. Hardw. 301, and see 2 New Rep. C. P. 211, 12. 1 Man. & Ryl. 211. Id. 215, (a).

(p) Cowp. 65.

(g) 2 Anstr. 461, and see 1 New Rep. C. P. 135. 11 Price, 156, 345.

of the dwelling house, an indictment will not lie against him for so doing. The State v. Rooker, 17 Verm. 658.

But the law will not permit a dwelling-house to be used fraudulently to cover a man's goods. Stitt v. Wilson, Wright, 505. But if an arrest has been made and the prisoner escapes and takes refuge in a dwelling, the officer while in fresh pursuit of him may break the outer door. Oysted v. Shed, supra. Allen v. Martin, supra.

[A] It is an arrest if the party is within the power of the officer. Gold v. Bissell, 1 Wend. 215. Strout v. Gooch, 8 Greenl. 127. Cooper v. Adams, 2 Blackf. 294. Field v. Ireland, 21 Ala. 240. Jones v. Jones, 13 Ired. 448. But if the defendant resists, some touching of the body is necessary, but if he submits, it can be dispensed with. M'Cracken v. Ansley, 4 Srobh. 1.

after it is returnable, (r) &c. he cannot be lawfully detained in custody under subsequent process at the suit of the same plain- [*220] tiff, though regularly issued: But *third persons, who find a defendant in custody, have a right to consider him as being lawfully in the custody in which he is found, and to proceed against him accordingly; for otherwise a person under an illegal arrest, at the suit of one party, would be completely protected, during his imprisonment, from all other process, which would be productive of great inconvenience and suspension of justice.(a)

Of the BAIL BOND; and DUTY of SHERIFFS, &c., on the ARREST. [A]

WHEN the defendant is arrested, he is either let out of custody, upon giving bail to the sheriff, or an attorney's undertaking for his appearance; or depositing in the sheriff's hands, the sum indorsed on the writ, with ten pounds in addition to answer costs, &c.; or he remains in custody, or escapes or is rescued, &c.

Bail in personal actions came in with the capias :(a) and it is either to the sheriff, for the appearance of the defendant at the return of the writ, or to abide the event of the suit: The former is called bail to the sheriff, or bail below; the latter bail to the action, or, when special, bail above. Before the statute 23 Hen. VI. c. 9, the sheriff was not obliged to bail a defendant, arrested upon mesne process, unless he sued out a writ of mainprize; though he might have taken bail of his own accord.(b) This arbitrary power produced great extortion and oppression of the subject: to remedy which, it was enacted by the above statute, that "sheriffs, &c., shall let out of prison all manner of persons arrested, or being in their custody, by force of any writ, bill or warrant, in any action personal, or by cause of indictment of trespass, upon reasonable sureties of sufficient persons, having sufficient within the counties where such persons be so let to bail or mainprize, to keep their days in such place as the said writs, bills or warrants shall require; persons being in their ward by condemnation, execution, capias utlagatum or excommunicatum, surety of the peace, or by special commandment of any justice, and vagabonds refusing to serve according to the statute of labourers, only excepted.

And that "no sheriffs, &c., shall take, or cause to be taken, any obligation, for any cause aforesaid, or by colour of their office, but only to themselves, of any person, nor by any person, which shall be in their ward by cause of law, but by the name of their office; and upon condition

(r) 2 H. Blac. 29, and see 3 East, 89. 1 Rose, 261, 2. (a) 2 Barn. & Ald. 743. 1 Chit. Rep. 579, S. C., and see id. 579, 80, 81, in notis. (a) Gilb. C. P. 33. And for the origin, progress, and general nature see Petersd. Part I. Chap. I.

(b) Gilb. C. P. 20, 21. 4 Bac. Abr. 461. F. N. B. 251. Plowd. 67. see 1 Vent. 55, 85. 2 Wms. Saund. 5 Ed. 60, 61, g. 1 H. Blac. 233.

[4] See 1 Archb. Pract. Pt. II., p. 632, 8 Ed.

of the law of bail,

Dalt. Sher. 56, and 15 East, 321.