Exemption from arrest.

be authorized to command every male inhabitant of his county, or as many as he shall think proper, and with such arms as he shall direct, and any military company or companies in said county, armed and equipped, to assist him in overcoming such resistance; and, if necessary, in seizing, arresting and confining the resisters, their aiders and abettors, to be dealt with according to law." Laws of 1845, ch. 69, § 18; 1 R. S. (5th ed.) 750, § 88; Boyles v. Hurtin, 10 Johns. 85. And it is provided by section 185 of the Code, that the sheriff, in the execution of an order of arrest, may call the power of the county to his aid, as in case of process. In the execution of an order of arrest, the sheriff is not supposed to be continually attended by a posse, and the law will regard with leniency a failure to retain the defendant in custody, where the failure resulted from the unexpected interference or resistance of a superior force. But no return of an escape or rescue will exonerate the sheriff from liability to the plaintiff for the damage he may sustain from the failure to take and retain the defendant in custody, when such resistance could have been reasonably anticipated and prevented. Crompton v. Ward, 1 Stra. 419. The law not only authorizes but requires the sheriff to provide such force as shall enable him to execute the process of the court, in spite of any resistance he has reason to anticipate. Howden v. Standish, 6 Man., Grang. & Sc. 504; S. C., 6 D. & L. 312. See Burdett v. Colman, 14 East, 163.

1. Exemption from arrest. Where a defendant is clearly privileged from arrest, no advantage can accrue to the plaintiff from the execution of the order, as the courts will, on the application of the defendant, immediately order his discharge. In certain cases, the arrest of a defendant while privileged will render the officer liable to an action for damages. As, where a witness has been arrested while attending a court to which he has been duly subpoenaed, the officer making such arrest will be liable to the witness for three times the amount of the damages which may be found by the jury, and will also be liable to an action at the suit of the party who subpoenaed such witness, for the loss, hindrance and damages sustained by him in consequence of such arrest. 2 R. S. 402 (419), § 54.

And where a sheriff has an order of arrest against a party claiming to be exempt as a witness, he should require the party to make an affidavit that he has been legally subpoenaed as a witness to attend before some court or officer, specifying such

Showing process - Handcuffs on defendant-Extortion - Discharge.

court or officer, the place of attendance, and the cause in which he was subpoenaed; and that he has not been subpoenaed by his own procurement, with the intent of avoiding the service of any process. If the defendant refuse to make such an affidavit he should be arrested by the sheriff and kept in custody until discharged by the court. 2 R. S. 402 (419), § 55.

With the exception of a witness who has made the foregoing affidavit, or a party clearly exempt as an ambassador or foreign minister, or the domestic servant of an ambassador or foreign minister, the safer course for the sheriff to pursue is to arrest the defendant named in the order, and leave him to apply to the court for a discharge. As to who are exempt from arrest, see art. 3, ante, 589 to 605.

m. Showing process. A regular officer is not bound to exhibit the original order of arrest when he arrests a defendant, but may serve a copy only. The rule is different when applied to an arrest made by a special deputy. He should in all cases produce the original order of arrest, and exhibit it to the defendant when so requested. But a refusal to do so will not constitute him a trespasser, if he can show that he had a regular, legal order in his possession which authorized the arrest. Arnold v. Steeves, 10 Wend. 515; Bellows v. Shannon, 2 Hill, 86.

n. Handcuffs on defendant. It is clearly illegal for an officer after an arrest on civil process to handcuff or manacle the defendant, unless he has attempted to escape or rescue himself. Wright v. Court, 4 Barn. & Cress. 596; S. C., 6 Dowl. & Ryl. 623. o. Extortion. By the practice of the English courts, and under the English statutes, an officer is liable to treble damages for exacting from the defendant more than the fees allowed by law for making an arrest.

p. Discharge, if arrest illegal. Whenever the sheriff discovers that an arrest made by him is illegal on account of some material defect in the order, or on account of privilege, or of misnomer of the party arrested, he should either immediately discharge the party arrested or apply to the court for an order to that effect. As the arrest is illegal, the continued imprisonment of the defendant cannot cure the defect, but only adds to the sheriff's liability in an action for false imprisonment. Morgans v. Bridges, 1 Barn. & Ald. 647; Brunskill v. Robertson, 9 Ad. & El. 840; Dunston v. Paterson, 2 C. B. N. S. 495. And where the sheriff discharges a defendant on the grounds before

Bail by defendant, and time allowed for.

mentioned, he is not liable to the plaintiff in an action for an escape. Ib.

Section 2. Bail by defendant, and time allowed for.

a. Bail, when given. The defendant may give bail whenever arrested, at any hour of the day or night, and he is entitled to a reasonable opportunity to procure it before being committed to prison. This privilege can be claimed at any time after arrest and before execution. Code, § 186. There are no reported decisions as to what constitutes "a reasonable opportunity" to procure bail. Under the English statutes, it is the imperative duty of the officer, on making an arrest, to immediately inform the defendant that he is at liberty to be taken to any safe and convenient house of any third person, designated by him, if within the county and within three miles of the place of arrest, and to remain there during the next twenty-four hours. Dewhirst v. Pearson, 1 Crompt. & Mees. 365; S. C., 3 Tyrwh. 242; Simpson v. Renton, 5 Barn. & Ad. 35. On giving bail the defendant is entitled to an immediate discharge from arrest. But before releasing the defendant the sheriff should, as a measure of precaution, assure himself that no detainer has been lodged with him while the prisoner was in custody, and, by reason of which, he may become liable for an escape.

ARTICLE VII.

PROCEEDINGS AFTER ARREST.

Section 1. Keeping the defendant in safe custody or in jail. a. In general. The Code requires the sheriff, after the arrest of the defendant, to keep him in safe custody until discharged by law. Code, § 185. In performing this duty the sheriff may place the defendant in actual confinement within the walls of the jail, or, on the receipt of the proper bond, may permit the defendant to go at large within the jail limits. Usually, a defendant arrested in a civil action is allowed the jail liberties. In either case the sheriff is responsible for the safe keeping of his prisoner until the latter is discharged by law. Sartos v. Merceques, 9 How. 188; Buckman v. Carnley, id. 180; Lockwood v. Mercereau, 6 Abb. 206; Metcalf v. Stryker, 31 N. Y. (4 Tiff.)

255.

There are three ways provided by the Code, by either of which

Discharge on deposit in lieu of bail-Bail, how given.

the defendant may be discharged from arrest, and the liability of the sheriff terminated. The defendant may secure his discharge by giving bail, as provided by sections 187, 211; or by a deposit of money with the sheriff, to an amount equal to the sum mentioned in the order of arrest, under section 197; or, in proper cases, the defendant may obtain an absolute discharge by moving for an order vacating the order of arrest, as provided by sections 204, 205.

So a defendant may be released from arrest by the consent of the plaintiff's attorney. But a release so obtained will not operate as a vacater or discharge of the order, but simply as a voluntary escape, or like a release on common bail under the old practice. Meech, v. Loomis, 28 How. 209; S. C., 23 id. 484; 14 Abb. 428; S. C. affirmed, id. 432, note. See Decker v. Judson, 16 N. Y. (2 Smith) 439; Winter v. Kinney, 1 N. Y. (1 Comst.) 365.

b. Discharge on deposit of amount stated in order of arrest. The defendant may, at the time of his arrest, instead of giving bail, deposit with the sheriff the amount mentioned in the order. The sheriff shall thereupon give the defendant a certificate of the deposit, and the defendant shall be discharged out of custody. Code, §§ 186, 196.

Certificate of Deposit in lieu of Bail.

(Title of cause.)

This is to certify that I have received from Y. Z., the abovenamed defendant, the sum of dollars, as a deposit in lieu of bail, being the amount mentioned in the order of arrest in this

action.

(Date.)

Sheriff of

(Signature.) County.

c. Bail, how given. The defendant may give bail, by causing a written undertaking to be executed by two or more sufficient bail, stating their places of residence and occupations, to the effect that the defendant shall at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. Code, § 187. When the action falls within the third subdivision of section 179 of the Code, the condition of the undertaking must be adapted to the character of the action.

In executing an undertaking of bail, a strict compliance with

Bail, how given.

the statute is necessary. There is a broad distinction made by the courts in relation to the security taken by the plaintiff and that taken by the sheriff, where the security is given to procure a discharge from arrest. The only mode by which the sheriff can discharge from arrest is that prescribed by statute; and he cannot take any obligation or security from the party in custody, conditioned otherwise than for his appearance at the day and place mentioned in the process. Should he take an undertaking otherwise conditioned, the act would be void as being without authority, and he would not be protected by it if an action should be brought by the party at whose suit the arrest was made, and the agreement or security being without consideration, so far as the officer was concerned, could not be enforced by him. Winter v. Kinney, 1 N. Y. (1 Comst.) 365; Shaw v. Tobias, 3 id. (3 id.) 188, 192.

But this restriction is confined to public officers; and the plaintiff may make such agreement, or take such security as he pleases, on discharging the defendant from arrest. Ib. Rogers v. Reeves, 1 Term R. 418; Fuller v. Prest, 7 id. 109; Decker v. Judson, 16 N. Y. (2 Smith) 439, 443; Armstrong v. Garrow, 6 Cow. 465; Richmond v. Roberts, 7 Johns. 319; Webber's Executors v. Blunt, 19 Wend. 188.

But the statute of frauds requiring the agreement and consideration to be in writing, while it applies to agreements where the consideration is the subject of mutual arrangement between the parties, does not apply to instruments given or executed under, and deriving their obligation from, special statutes, without the acceptance and assent of the party for whose ultimate benefit they are given.

A mere undertaking or promise does not, ex vi termini, import a consideration. But where the statute requires an undertaking to be entered into by sureties, an instrument containing the requisite stipulations is valid, although it does not express a consideration, and is not under seal. Thompson v. Blanchard, 3 N. Y. (3 Comst.) 335; Doolittle v. Dininny, 31 N. Y. (4 Tiff.) 350; Slack v. Heath, 1 Abb. 331; S.C., 4 E. D. Smith, 95; Johnson v. Ackerson, 40 How. 222; S. C. affirmed, 3 Daly, 430. It is enough that the statute recognizes and authorizes such an instrument. Ib.

Where an order of arrest is granted under subdivision 3 of section 179, the undertaking must contain additional conditions