tion, the service, in either case, is void. The court in such a case, will discharge from arrest, upon motion;1- set aside all subsequent proceedings; and the party arrested, may also maintain an action for false imprisonment against the officer, as if the arrest had been made without any such civil process.3

But if, after such detention from Sunday until Monday, the defendant were arrested, at the suit of a person, wholly ignorant of and disconnected with the previous detention, the arrest would be valid."

5

4

A defendant, however, who has escaped, may be retaken on Sunday. And bail may take their principal on Sunday, and keep him till Monday, and then surrender him.6

An arrest cannot be made upon a writ, after its return day. If it be, the court will discharge upon motion." But it may be made on the return day.R And it has been decided, that an execution returnable to a court, holden on a certain day, may be executed at any time, on that day, before the court adjourns:and that if the officer have begun to execute it, before the return day, it is sufficient, and he may complete it afterwards.9

1 Ex parte Wilson, 1 Atk. Rep. 152. Bac. Abr. Shff. N. 4. Lyford v. Tyrrel, 1 Anstr. 85. Alkinson v. Jameson, 5 Term. Rep. 25. Hall v. Roche, 8 Term. Rep. 187.

80.

25.

2 Robb v. Moffat, 3 Johns. Rep. 257.

3 Genner v. Sparks, 1 Salk. 79. Stat. 1791. ch. 58, 59.

4

5

Barclay et als. v. Faber, 2 Barn. & Ald. Rep. 743. 1 Arch. Pract.

Anonymous, 6 Mod. Rep. 231. Atkinson v. Jameson, 5 Term. Rep.

Ibid.

Loveridge v. Plaistow, 2 H. Black. Rep. 29.

Adams v. Freeman, 9 Johns. Rep. 117.

'Prescott v. Wright, 6 Mass. Rep. 20.

SECT. V. WHERE AN ARREST MAY BE MADE.

It is a general rule, that upon civil process, an officer cannot break the outer door, or a window of a dwelling house,—every individual being, by law, protected from arrest, in his own house, if he choose to shelter himself therein."

In execution of an habere facias, however, an officer may break an outer door, as an entry is necessary to the delivery of possession. So also, he may justify the breach of a house, to arrest, or seize the goods of, any person therein, other than the owner, the owner's children, domestics, permanent boarders, or inmates, who have made the house their home; because it is to these alone, and to goods lawfully in the house, without fraud or covin, that the privilege of the house, as a castle, is confined.2

But an officer cannot justify the breach of a house, in such a case, upon the suspicion, that the person or goods of one, not entitled to its protection, are concealed there; he must act at his peril, and be justified or condemned by the event.3

If an arrest, however, have once been legally made, and the person escape to his house, the officer may break the house, to retake him. And in criminal

1 Lee v. Gansel, 1 Cowp. Rep. 1. Semagne v. Gresham, Yelv. 29 a. and note 1. 5 Co. 91.

2 Ibid. Oystead v. Shed et al. 13 Mass. Rep. 520.

3

Ratcliffe v. Burton, 3 Bos. and Pull. Rep. 223, and cases cited in argument.

'Foster's Crown Law, 320. White v. Wiltshire, Palm. 53. 2 Rol. Rep. 138, S. C.

process, the officer may always break the outer door, or window, after demand and refusal of entrance.'

When lawfully in the house, the officer may break the inner doors, trunks, closets, &c. to execute civil process. And no previous demand of admittance, in such a case, is necessary.2

With the foregoing exception, an individual may be arrested any where. And the exception is confined exclusively to the dwelling house, and does not extend to the defendant's store, barn, outhouse, or any public building.3

If an officer break open an outer door, to execute civil process, except in the before named cases, he is a trespasser, and the owner may defend himself as against any trespasser.

It is said, that though by such an illegal act, the officer become himself a trespasser, yet that the service by him, after such breach and entry, is legal and valid. But this is questionable: at least, it has not been settled, by any direct authority. And it has been decided, that where there has been an irregular arrest, and advantage been taken of it, to charge the person in custody, at the suit of another, the court will discharge from both arrests.

15 Co. 93.

2 Hutchinson v. Birch et al. 4 Taunt. Rep. 620. Williams v. Spencer, 5 Johns. Rep. 352.

Keb. 698. 1 Sid. 186.

45 Co. 93. Dictum of C. J. Parsons, in Widgery et al. v. Haskell, 5 Mass. Rep. 155.

5 Yelv. 29 a. n. 1.

Yelv. 29 a. n. 1. Ex parte Wilson, 1 Atk. Rep. 152.

SECT. VI. DUTY OF AN OFFICER, IN MAKING AN ARREST.

To the plaintiff. The officer, having received a legal precept, and having received, also, special directions from the plaintiff, or his attorney, either in writing or by parol, to serve the same as a capias, is bound to arrest the defendant, if to be found within his precinct. For a return, that the defendant cannot be arrested, or that the precept cannot be served, for resistance, can never be justified, inasmuch as the officer, in the execution of such process, may command the posse comitatus.1

It

For the same reason, an officer, when he has once arrested, must, at his peril, retain the defendant. is presumed, however, that in both cases, were the officer overcome by actual force, he would be liable to nominal damages only.

If the defendant be known, or can be easily ascertained, the officer must arrest him, upon the mere direction of the plaintiff. If otherwise, and there be a question as to the identity of the defendant, the plaintiff is bound, as in the attachment of property, upon demand, to point him out, and to indemnify the officer, against the consequences of a mistake.2

Should there be several persons, of precisely the same name and occupation, in his precinct, and the officer be unable, by any means, to ascertain, which is the defendant named in the writ, the safest return for him to make, would be, that he did not know

1

1 2 Inst. 193, 453. Bac. Abr. Shff. N. 2.

2 Marsh v. Gold et al. 2 Pick. Rep. 285.

upon whom to serve it, for a return of "non est," would be false.1

To the defendant. An officer generally known as such, is not bound to shew his writ, before he serves it but after service, or when the defendant has submitted to the arrest, if the defendant demand it, and not otherwise, he is bound to make known the cause of the arrest. A special deputy, however, and perhaps a newly appointed officer, also, ought to shew the writ before executing it.3

2

The refusal of the officer to shew his writ, when bound so to do, will not make him a trespasser ab initio. But the service, in such a case, may be set aside for irregularity.*

SECT. VII. CONSEQUENCES OF MISTAKES IN AN

ARREST.

If the defendant be rightly named in the writ, but the sheriff execute his process upon the wrong person, though of the same name with the right one, he will be a trespasser. And it would be the same, though the person arrested, declared that he was the individual named in the writ.5

If the writ describe the defendant by a wrong name, unless he be known as well by that given him, as by his true one, -the officer cannot arrest him. If he

1 Dalt. Shff. 112, 113.

2 Blatch v. Archer, 1 Cowp. Rep. 63. Crowther v. Ramsbottom et als.7 Term. Rep. 654. Bac. Abr. Shff. N. 1. 9 Co. 66. Commonwealth v. Field, 13 Mass. Rep. 321. Countess of Rutland's case, 6 Co. 53.

3 Bac. Abr. Shff. N. 1.

Thomas v. Pearce, 2 Barn. & Cress. Rep. 761.

1 Burr. Rep. 210. Moore, 457.