#### STATE vs. BAILEY KIRBY.

An oral requisition, by a plaintiff in a warrant, to an officer to take bail, is to justify the latter in making an arrest and insisting on bail.

But an officer by virtue of his office is not an agent of the plaintiff for exacting bail; and it may be doubted whether he can become an agent for that purpose.

Appeal from the Superior Court of Law of Macon County at Fall Term, 1843, his Honor Judge Dick presiding.

This was an indictment against the defendant for falsely arresting and imprisoning one Bonnard Long, to which the defendant pleaded not guilty. It was proved on the trial, that the defendant arrested and took into his custody Bonnard Long and detained him in custody several hours. It was also proved, that the defendant said he arrested Long on a warrant in favor of Bryson & Alison. The defendant proved that he was a constable-for Macon County, in which the arrest was made. The defendant’s counsel admitted that he had no warrant, at the time of the arrest, in favor of Bryson & Alison, but alleged that he had a warrant in favor of one Matthis, and offered the warrant which was in the following words, to wit :

“Stale of'North Carolina, "I To any lawful officer to Macon County. j ss' execute and return in

thirty days, Sundays excepted : You are hereby commanded to take the body of Bonnard Long and cause him to appear before some justice of the peace ot said County, to answer the complaint of Peter Matthis in a plea of debt due by book account, the sum under ten dollars. Given under my hand and seal this 18th of February, 1841. (Signed and sealed by a justice).” On the back of this was an in-dorsement as follows: “Peter Matthis vs Bonnard Long, $7 56. Executed by B. Kirky, Const.”

The defendant then proved by one Paxton, that he, Paxton, as the agent of Bryson and Alison carried a note executed by *91Long to the defendant and informed him that Bryson and Alison wished him to proceed on the said note-against Long mediately,for he, the witness, was informed that Long was about to run away. This witness further stated, that he saw, at the same time, a warrant in the possession of the defendant in favor of Matthis against Long, and believed the warrant offered in evidence to be the same paper — that the defendant arrested Long on the same day in the County of Macon — that Long wished to cross the line into Haywood County, for the purpose of making an arrangement with Bryson and Alison, who lived in Haywood — that the -defendant refused to let Long go into Haywood County unless Bryson and Alison would release him (the defendant) from all liability — that they agreed to do so, and Long went into Haywood. This witness heard nothing said between Long and the defendant about the Matthis debt. The defendant then proved by one Bryson, that he heard something between the defendant and Long about the Matthis debt, while Long was in custody, but could not tell what was said. There was no evidence that Matthis had ever instructed or required the defendant to hold Long to bail on the said warrant. The defendant’s counsel requested the Court to instruct the jury, “that, though the law is, that, unless the plaintiff instruct the cer to hold to bail, the warrant is nothing more than a summons ; yet, it the jury are satisfied from the evidence Paxton, that the defendant was informed upon the arrest that Long was about to run away, the defendant, being law the agent of Matthis, had a right to hold Long to bail, he did so bona fide, for the purpose of securing the due to Matthis.” The Court refused the instructions ed for, but instructed the jury, that, if they believed the fendant arrested Long and detained him in custody several hours, as stated by the witness, without any legal authority to do so, he was guilty of the charge in the indictment— that the warrant in favor of Matthis, if they believed defendant had it in his possession at the^ arrest, would authorize the arrest and detention of Long, unless Matthis 'had instructed the defendant .to hold Long to bail.

*92The jury found the defendant guilty, and judgment having been given pursuant to the verdict, the defendant appealed.

Attorney General for the State.

No counsel in this Court for the defendant.

Ruffin, C. J.

A constable is directed by the act of 1794 (Rev. Stat. c. 62, s. 7), £< when required by the plaintiff” to take bail, on serving a warrant. The act does not prescribe the mode in which the plaintiff shall require bail as by in-dorsement by himself or his agent on the warrant; and, perhaps, the omission may lead to abuses, if permitted to continue. But, as the act is silent, we should feel obliged to hold that an oral requisition was sufficient, and that of an agent was in law that of the plaintiff. But we think the Court was right in refusing the instructions prayed for, because they assume a position wholly indefensible, that the constable was “ in law the agent of the plaintiff” for this purpose. By virtue of his office, he is not the agent of the party, but of the law ; and, in reference to the power and duty of taking bail, he is to act as he may be required by the plaintiff, and not by his own will or judgment. Whether he can become the agent of the plaintiff, so as thereby to invest himself with the arbitrary authority to summon or to imprison a defendant, is well worthy of consideration. Admit that he may, there was no evidence of such agency pf the defendant for Matthis in this case ; not even any thing from which an agency for this purpose might be remotely inferred, as if the demand were due on a bond and Matthis had placed it in the hands of the defendant to collect, with or without suit. The defendant was clearly guilty ; and the judgment ought to stand.

Per Curiam, Ordered to be certified accordingly,