#### THE STATE vs. BENJAMIN S. BRITTAIN.

When a Sheriffhas arrested a defendant upon mesne process, and taken bail, he cannot afterwards arrest him, upon the ground that the bail is insufficient.

December 1842.

An appeal from the Superior' Court of Law of Macon County, at the Fall Term, 1842, his Honor Judge Pearson presiding.

The defendant was indicted for an assault and battery on Eli McKee. Eli McKee proved that, as Sheriff of the county of Macon, he had two capias’s ad respondendum against the defendant, for about 600 dollars — that he informed Brit-tain of the feet, and asked him if he would give bail — .that Brittain proposed to give one Bird and one Cruise — that the witness told him they were not sufficient, and he must give good freehold sureties — that Brittain promised'to do so, and took the bonds off for that purpose — that after some time the bonds were handed to the witness, and he, without looking at them, put them in his hat — that during the day he looked at the bonds, and, to his great surprize, found that they were only signed by Bird and Cruise — that he immediately went to Brittain and told him the sureties were not sufficient, and he must give others — that Brittain said he had once accepted the bonds, and had no right to arrest him again, or to require other sureties — that the witness insisted he must give good sureties, as he had promised to do, or he would arrest him— that Brittain refused, and the witness walked up to arrest him, when Brittain struck him, and threw him on the ground. The defendant introduced evidence tending to shew that McKee, although he objected to Bird and Cruise' at first, was finally induced to think them sufficient, and had accepted the bonds; and that it was not until sometime afterwards, that, finding they were not good, he went to Brittain and re-qu ired other sureties.

*18defendant's counsel moved the Court to instruct the that, if McKee had accepted the bonds, and discharged the defendant upon that bail, he had no right afterwards, though the bonds turned out not to be sufficient, to arrest the defendant and require other bail, and that the defendant was justified in the assault and battery, as resisting an illegal arrest. The Court refused so to instruct, but charged the jury, that, although a Sheriff accepts a bail bond, believing it to be good, yet, if he afterwards discovers it not to be good, he has a right to notify the defendant of the fact, and require other'bail, and, if this is refused, to arrest him, and the defendant is not justified in resisting — that the Court was of opinion, that the provision in the act of Assembly, as to notice before the Sheriff is chargeable as special bail, being for the benefit pf the Sheriff, he is not obliged to wait until he receives notice, but may proceed immediately, as soon as he ascertains the insufficiency of the bail, to arrest the defendant, in order to protect himself as special bail.

The jury found the defendant guilty. A new trial having been moved for and refused, and judgment having been pronounced against the defendant, he appealed to the Supreme-Court.

Attorney General for the State.

Francis for the defendant.

Dakiel, J.

At the common law, if a Sheriff, who arrests on mesne process, (not on Ca. Sa.) lets the defendant go at large without taking bail, he may retake him at any time before the return of the writ, and he is not liable to an action for an escape. Atkerson v Walterson, 2 T. R. 192. Fuller v Prest, 7 T. R. 105, Watson on Sheriffs 126. — 1 Archb. Prac. 85.

In this State, (by the Statute,) if the Sheriff do not take bail, when he arrests on mesne process, he, himself, is special bail; and he may then; as bail, arrest at any time thereafter. But if the Sheriff has once taken bail on an arrest on mesne process, in a civil action,, we find nothing in the law books, which authorizes him to arrest the defendant a second *19time on the same process, on the ground that the bail may-have become insufficient. In this State, there is necessarily, by force of the Statutes, but a small space of time between the date of the bail bond, (when the Sheriff may, and does exercise his judgment as to the sufficiency of the bail,) and the return Term of the writ; at which Term only, can the plaintiff be at liberty to except to the bail bond. If the Sheriff might again arrest at any time, and as often as he pleased, before the return of the writ, then defendants in civil suits might be put to great inconvenience. ■ The danger of loss, either to the Sheriff or to the plaintiff, can be but small, if the Sheriff is prohibited from making a second arrest, whilst the harrassments and inconveniences to defendants might be great, by permitting him to arrest a second time, on the same process, after bail had been once given. We think that the Judge erred in this part of his charge to the jury, and that there must be a new trial.

Per Curiam. New trial awarded.