party has no privilege redeundo; Goodman v. London, 2 Dowl. 504; 3 Nev. & M. 879; and the same, it should seem, as to civil process; but if discharged by reason of the process being irregular, or irregularly executed, he is privileged redeundo. R. v. Blake, 2 Nev. & M. 312.

Taking to prison.] Upon an arrest on mesne process, the defendant shall not be taken to prison within twenty-four hours, unless he refuse in the mean time to be taken to some safe and convenient dwelling-house, to be named by him, not being his own house; nor shall the officer carry him to any publichouse or tavern, or to any house kept by himself. 32 G. 2, c. 28, s. 1. See Simpson v. Renton, 2 Nev. & M. 52, 5 B. & Ad. 35. Evans v. Atkins, 4 T. R. 555. Pitt v. Sh. of Middlesex, 1 Dowl. 201. Dewhurst v. Pearson, 1 Cr. & M. 365. Barsham v. Bullock, 10 Ad. & El. 23.

Detainer.] When a defendant is arrested upon a writ of capias ad respondendum or capias ad satisfaciendum, and any other writs of capias against him are in the hands of the same sheriff at the time of the arrest, or at any time during his detention, he is deemed by law to be arrested by the sheriff on all the writs, and the sheriff is accountable for his detention to the several plaintiffs at whose suits respectively the writs have been sued out. Hence the necessity of the practice of searching for detainers in the office of the under-sheriff, before a defendant arrested upon a capias is discharged out of custody, upon bail or otherwise.

If, however, a party be arrested, and there be then detainers against him in the office at the suit of the same plaintiff, and the arrest be decided to be unlawful, from any irregularity in the writ, or in the manner of executing it, or the like, the defendant, if ordered to be discharged from the first arrest, will be entitled to be discharged also as to the other detainers at the suit of same plaintiff. So, if the wrongful arrest be caused by the plaintiff or his attorney, though at the suit of another, for the purpose of lodging a detainer against the defendant or arresting him at the suit of the plaintiff, as soon as he should be in custody: in such a case, if the defendant be discharged as to the first arrest, he shall be discharged also at the suit of the plaintiff. And therefore where, by the contrivance of the plaintiff's attorney, the defendant was arrested on a Sunday upon a criminal charge, namely, an assault upon a third person, for the purpose of effecting his arrest in a civil action on the Monday, when he should be brought before the magistrate, and he was accordingly arrested on the Monday: the court ordered him to be discharged. Wells v. Gurney, 8 B. & C. 769. See Jacobs v. Jacobs, post, p. 167.

So, if the sheriff, by the illegal act of himself or his officer,

arrest a party, there he is not deemed to be in custody under any process, but is suffering a false imprisonment; which false imprisonment cannot operate as an arrest or detainer of the party under other writs against him which may then happen to be in the hands of the sheriff. Therefore, where the warrant on a capias against J. S. was given to the officer to whom it was directed, and the officer's assistant, in the absence of the officer, and not having the warrant with him, arrested J. S. and gave him in charge of a policeman for a pretended felony, in order to detain him until the officer should make a caption under the capias: the defendant, upon application to a judge, was discharged as to the capias; and the court afterwards held that as the sheriff or his officer was party to this illegal arrest, J. S. could not be detained upon a ca. sa. at the suit of another plaintiff, which happened to be in the sheriff's hands at the time of the first arrest. Barratt v. Price, 9 Bing. 570. So, where Sloman, a sheriff's officer, without warrant, arrested a defendant, against whom there were several writs in the sheriff's office; and having taken him to his lock-up house, Sloman then got a warrant made out to himself in one of the actions; but finding that this would not avail him, as being made after the arrest, he procured his name to be added by the undersheriff in a warrant upon another of these writs, which had already been issued to another officer, named Nathan: the question was, whether the defendant was entitled to be discharged in that action in which the warrant was made out to Sloman, and in that in which Sloman's name was added to the warrant, and as to the other writs then in the office against the defendant; and the actions being in different courts, applications were made to these courts respectively: the court of Queen's Bench held that he was entitled to be discharged as to the first action, because the arrest was without warrant, and as to the second, because Sloman was acting in the illegal arrest, and as to all the others, because by the arrest he was not in custody of the sheriff under any of the writs, but was falsely imprisoned by Sloman; but the court said that if Nathan, without collusion with Sloman, had under his warrant arrested the defendant whilst he was in the custody of Sloman, the arrest would have been good, and the defendant would then be rightfully in the custody of the sheriff in the other actions: Collins v. Yewens, 10 Ad. & El. 570, 8 Law J. 332 qb: the court of Common Pleas, in another of the actions, were of the same opinion: Pearson et al. v. Yewans, 5 Bing. N. C. 489, 8 Law J. 255 cp.: but the court of Exchequer, in another of the actions, upon an affidavit of the under-sheriff that at the time he added Sloman's name in the warrant he was not aware the defendant had been arrested, held that the detainers were all good; Sloman not having a warrant when he made the arrest, it was the act of a mere stranger, and the under

sheriff adding Sloman's name in the warrant, did not make the sheriff a party to the illegal arrest, for the under-sheriff did not know at the time that the caption had been made; therefore the arrest under Nathan's warrant was good, and operated as a detainer of the defendant in all the other cases. Robinson et al. v. Yewens, 5 Mees. & W. 149, 8 Law J. 166 ex.

But where a person, having a capias in the sheriff's hands against a defendant, is not a party to the suit in which the defendant is illegally arrested, and does not collude with any party to it, and where the sheriff is no party to the illegal arrest, then such capias will operate as a detainer of the defendant, although he be discharged out of custody as to the action in which he has been illegally arrested. Therefore, where a sheriff's officer, without warrant, arrested a defendant at the suit of A., and A.'s attorney, perceiving the error, sent for the officer who had the warrant, and gave the defendant into his custody; this latter officer having also another warrant against him at the suit of B., lodged him in gaol charged with both actions: the court held that the defendant was entitled to be discharged in the action at the suit of A., but not in that at the suit of B. Howson v. Walker, and Crowden v. Walker, 2 I. Bl. 823. So, where a defendant was arrested at the suit of A., on. an insufficient affidavit to hold to bail; and during his imprisonment B., another creditor, without collusion with A., lodged a detainer against him: the court discharged him as to the arrest at the suit of A., but held that he was not entitled to be discharged as to the action at the suit of B. Barclay et al. v. Faber, 2 B. & A. 743. So, where an arrest was set aside, on account of some previous arrangement between the parties, it was holden that a ca. sa. at the suit of another, which was at the time in the hands of the same sheriff, was a valid detainer, and that the defendant could not be discharged as to it. Arundel v. Chitty, 1 Dowl. 499. So, where a man was arrested on a Sunday, on a charge of forgery, and being brought before a magistrate on Monday was discharged; but upon leaving the police office, he was arrested in an action at the suit of one of his creditors; and there was an affidavit denying all collusion between the creditor and the person who preferred the charge of forgery: the court held that he was not entitled to be discharged. Jacobs v. Jacobs, 3 Dowl. 675. So, where a defendant was arrested upon a ca. sa., and whilst in custody a detainer was lodged against him by another party; he was afterwards discharged as to the ca. sa. on the ground of irregularity; but the court held that he was still properly in custody as to the detainer. Ex p. Cogg, 6 Dowl. 461. The case of an arrest of a privileged person, is the only exception to this; there if he be arrested whilst privileged from arrest, as for instance, if a witness be arrested redeundo, he shall be discharged not only as to that action, but as to all other writs against

him then in the hands of the sheriff. Spence v. Stuart, 3 East, 89. Where a defendant, whilst privileged, was arrested at the suit of one of his creditors, and there were four other writs against him in the sheriff's hands at the same time, Tindal, C. J., made an order to discharge him out of custody as to the detainers as well as the writ on which he was arrested; he was afterwards arrested on a ca. sa. at the suit of another creditor, whilst he was not privileged, and by that time six other writs had been lodged with the same sheriff against him; he then applied to be discharged as to this ca. sa. on the ground that the plaintiff was dead at the time it was sued out, and he was discharged accordingly; but the court held that he was not entitled to be discharged as to the detainers, neither as to those in the sheriff's hands when he was formerly discharged, nor as to those lodged since. Barrack v. Newton, 10 Law J. 182 qb.

If there be detainers against a defendant arrested, and he be entitled to his discharge not only in the action in which he was arrested, but as to the detainers also, care must be taken that the rule or order be drawn up accordingly. See Watson v. Carroll, et al. 4 Mees. & W. 592. And in such a case the rule nisi or summons must be served upon the detaining creditors, as well as the creditors who caused the arrest, Sharplin v. Hunter, 6 Dowl, 632.

SECTION VII.

Bail Bond, &c.

1. Bail Bond.

2. Deposit with the Sheriff.

1. Bail Bond.

The defendant, when arrested upon a capias, “shall remain in custody, until he shall have given a bail-bond to the sheriff, or shall have made deposit of the sum indorsed on such writ of capias, together with 101. for costs, according to the present practice of the superior courts." 2 & 3 Vict. c. 110, s. 4. And the sheriff or other officer, to whom the capias is directed, is bound to discharge the party arrested under it, upon bail, if he tender sufficient sureties for that purpose. 23 H. 6, c. 9. See 2 Saund. 59, 59 a (3). 61 c (5). Matson v. Booth, 5 M. & S. 223. Lovell v. Sh. of London, 15 East, 320. Evans v. Moseley, 2 Cr. & M. 490. On the other hand, if he discharge him without taking a bail-bond, he must take care that bail above be afterwards put in within due time and perfected, see Allingham v. Flower, 2 B. & P. 246. Pariente v. Plumtree, 2 B. & P. 35,

or the defendant duly rendered, see Brookhouse v. Sh. of Derbyshire, 5 B. & C. 244, otherwise an action may be maintained against him for an escape; and the court will not relieve him by allowing him afterwards to put in and perfect bail, Fuller v. Prest, 7 T. R. 109. Webb v. Matthew, 1 B. & P. 225. How v. Lacy, 1 Taunt. 119, or to render the defendant, Bird v. Bond, 6 Taunt. 554, 2 Marsh, 261. Vanderhaden v. Britten, 4 D. & R. 155, or if an attachment be obtained against him, they will not set it aside. R. v. Sh. of Surrey, 7 T. R. 239. R. v. Sh. of London, 2 B. & A. 354. Collins v. Smeggs, 6 Moore, 111.

"

The bond.] The stat. 23 H. 6, c. 9, directs the sheriff to take 'reasonable sureties of sufficient persons;" and therefore it is usual to require two sureties, with the defendant, to join in the bail bond. But there may be more. See Matson v. Booth, 5 M. & S. 223. Even if there be but one surety, the bond is not invalid on that account: 10 Co. 101 a: but the court do not favour it; and they will not set aside an attachment against the sheriff, at his instance, in a case where he has taken a bail bond with one surety only, R. v. Sh. of London, 2 Bing. 227, although they will, at the instance of the bail. R. v. Sh. of Middlesex, 2 Dowl. 140. R. v. Sh. of Middlesex, 7 Id. 313. The security must be by bond, 2 Saund. 596, and not by any undertaking or agreement not under seal. Sedgworth v. Spicer, 4 East, 568. Lewis v. Knight, 1 Dowl. 261. And see 2 Saund. 60. Fuller v. Prest, 7 T. R. 109. It must be given to the sheriff, as such, Rogers v. Reeves, 1 T. R. 422, in double the sum sworn to, see Norden v. Horsley, 2 Wils. 69, conditioned for the appearance of the defendant in the court out of which the process issued, Jones v. Stordy, 9 East, 55. Renalds v. Smith, 6 Taunt. 551. 2 Saund. 60 b., in eight days from the arrest, Evans v. Mosely, 2 Dowl. 364, to answer the plaintiff in a certain action, see 2 Saund. 60 a. Owen v. Nail, 6 T. R. 702, naming the parties correctly. Holding v. Raphael, 5 Nev. & M. 655, 1 Har. & W. 571. and see Parker v. Bent, 2 D. & R. 73.

Forfeiture and assignment of it.] By stat. 4 Ann. c. 16, s. 20, the sheriff shall, at the request and cost of the plaintiff, assign to him the bail bond, in the presence of two witnesses; after which the plaintiff may bring an action upon it in his own name. See Philips v. Barlow, 3 Dowl. 381. Wright v. Barrett, 5 Dowl. 64, 1 Bing. N. C. 433. And the witnesses must both be such as can prove it upon the trial; and therefore where the plaintiff in the action and another were the attesting witnesses to the assignment, it was holden that no action could be maintained upon the bond at the suit of the assignee. White v. Barrack et al. 1 Mees. & W. 424. This