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56 2. That he has not been subpænaed by his own procurement, with the intent of avoiding the service of any process:

"Which affidavit may be taken by such officer, and when so taken shall exonerate such officer from all liability for not making such arrest.”:44

show cause.

If the application for the discharge of the defendant be made Notice to be to the court, notice should be given to the opposite party ; rule only to though if this be not done, the court will grant a rule to show cause, and in the mean time stay the proceedings.95 Or the application may be made to the judge at nisi prius, who will grant a habeas corpus, and discharge the party aggrieved, or order the officer who made the arrest to show cause why he should not be discharged;46 and if he be a party to the cause on account of which he is attending, the court will put off the trial, without payment of costs, if any collusion can be shown between the opposite party and the creditor who arrested him; otherwise only on payment of costs.47

no non

Debt under


after enlist

Soldiers, seamen, &c.] By an act of congress, commissioned officer, musician, or private shall be arrested, or subject to arrest, or to be taken in execution, for


debt under the sum of twenty dollars, contracted before enlistment, any amount nor for any debt contracted after enlistment.”:48 And by an ment. act passed July 11th, 1798, the non-commissioned officers, Seamen, and marines enlisted into the service of the United Seamen and States, are exempted during their term of service from all personal arrests for any debt or contract.49

The militia of this state are likewise exempt from arrest on Militia civil process, on parade days, from the rising to the setting of




44 Ib. 8. 55.

48 Act of March 16, 1802. s. 23. 1 Caines' Rep. 116.

Laws U.S. Vol. 3. p. 456. Story's 1 Camp. 229. 1 Stark. 470. edit. Vol. 2. p. 835. 1 Arch. Pract. 77.

49 Laws U. S. Vol. 3. p. 97. s.5. 47 1 Camp. 229.

Story's edit. Vol. 1. p. 543. VOL. II.

the sun 350 and the same privilege is enjoyed by persons enrolled as musicians.51

Privilege on election days.] In the sixth chapter of the first part of the revised statutes, “Of elections other than for militia and town officers," it is provided, that " whenever an election shall be held in any city or town, pursuant to this chapter, no civil process shall be served in such city or town on any elector entitled to vote therein, on either of the days during which such election shall be held.”

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Infancy and insanity,

Infancy is no ground for a discharge from arrest, but must be taken advantage of as a defence to the action.53 Nor will a defendant be discharged on common bail on the ground of insanity, whether he was insane at the time of the arrest, or became so afterwards.54

Writ of privilege need


The court will not compel a defendant who is privileged to not, in gene- sue out a writ of privilege,55 unless the question of privilege

be doubtful ;56 but will relieve him on motion, due notice having been given.57 And as we have seen, he will in general, when the privilege is at common law, be required to file common bail.58

Officer not bound to notice privi. lege.

The officer making the arrest is not bound to take notice that the party is privileged, except in the cases and on the terms required by statute in the case of witnesses ;59 and where a soldier privileged from arrest was taken in execution by a con

50 R. St. P. 1. Ch. 10. T.5. s. 27. Vol. 1. p. 303.

51 Ib. T. 3. s. 9. Vol. 1. p. 293.

55 Str. 989. 5 Term Rep. 689.
56 2 Barn. & Ald. 234.
57 1 Caines' Rep. 116.

1 Wendell. Rep. 292. 3 Cowen. Rep. 381. 7 Johns. Rep. 538. 2 Johns. Rep. 294.

52 R. St. P. 1. Ch. 6. T. 1. s. 4. Vol. 1. p. 127.

53 1 Bos. & Pul. 480.

54 2 Term Rep. 390. 4 Term Rep. 121. 2 Bos. & Pul. 362. 18 Johns. Rep. 134. n. a.

59 Ante, p. 8, 9.


stable, who suffered him to go at large, it was held, that it was a good defence for the constable to show the privilege in an action against him for an

The privilege being merely personal, it seems that it may be waived.61

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61 12 Johns. Rep. 89.

11 Johns. Rep. 433. sed vide 18 Johns. Rep. 52. ante, Vol. 1. p. 106.




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Sheriff to assign bond apon default.

If default be made in the condition of the bail bond given by the defendant, it is provided by statute, that the sheriff taking the same, or his personal representatives, shall assign such bond to the plaintiff in the action, at his request, who may prosecute the same in his own name; and such proceedings shall be had in such action for the recovery of the plaintiff's demand and for the relief of the bail thereon, as is in this

act herein after prescribed.” It is further provided, that Court may “when an action shall be brought upon any bail bond, taken give relief.

on the arrest of a defendant, that shall have been assigned to
the plaintiff, the court in which such action shall be pending
may give such relief to the defendants therein as may be just;
and all orders of such court for that purpose shall have the
effect of a defeasance of such bail bond.”3

See ante, Vol. 1. p. 381.

3 R. St. P. 3. Ch. 6. T. 6. s. 16. 2 R. St. P. 3. Ch. 6. T. 1. s. 12. Vol. 2. p. 380. Vol. 2. p. 349.

These provisions in the revised statutes embrace the substance of the eighth section of the “ act for the amendment of the law, ,24 which was taken from the English statute of 4 & 5 Ann. c. 16.

It has been decided, that the assignment might be made by Assignment the under-sheriff, in the name of the sheriff, as well as by the by under sheriff himself ;; and it is now by a provision in the revised statutes declared, that “whenever any sheriff is required by law to assign any bond taken by him in the progress of any cause or proceeding, to any party, and the office of such sheriff shall be vacant, his under-sheriff, or the person acting in the place of such sheriff, is authorized and may be compelled to execute such assignment, in the name of the sheriff to whom such bond was given ; which assignment shall be as valid and effectual as if executed by such sheriff.”6

The statute is compulsory on the sheriff to assign the bail bond at the request of the plaintiff, and if he refuse or neglect to do so, he is liable to an action on the case.

When the assignment may be made.] It has been said, that the bail bond may be assigned before it is forfeited ;8 but this does not seem compatible with the language of the present statute, the terms being, “ if default shall be made in the condition, &c., the sheriff, &c., shall assign such bond.” But at any time after forfeiture, the plaintiff may take the assignment; in the king's bench, even after two terms from the term in which the writ was returnable, though in the common pleas it is otherwise. 10 And it has been held, that after default made in putting in special bail in time, it is not enough that the bail


1 R. L. 519.

Barnes, 77. but see 8 T. R. 4
Str. 60. S. C. 10 Mod. 288. 4 & 15 Johns. Rep. 182.
Camp. 36.

9 2 Str. 1262. and see Tidd. 321, R. St. P. 3. Ch. 3. T. 2. s. 60. 322. Vol. 2. p. 286.

10 2 W. Bl. 876. 72 Saund. 61. a. 5 Taunt. 325. but see 3 Price, 36.


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