1804: BIRCH and Another v. PRODGER and Another, Bail of THIS HIS was an application to the Court, on the part of Samuel Plaisted, an attorney of this Court, to be discharged out of the custody of the sheriff of Lon don, as having been illegally arrested upon an attach ment for non-payment of money. The result of the affidavits on both sides was as follows: Plaisted, having been employed by the Plaintiffs as their attorney, recovered of the Defendants the sum of 7451. 12s. 4d., and also got into his hands several papers belonging to the Plaintiffs. In consequence of this, Plaisted's conduct being investigated in this Court, he was ordered to pay over the money to the Plaintiffs; for non-payment of which an attachment was issued. The process upon this attachment was put into the hands of one Shapcott,an officer,but Plaisted kept out of the way, to avoid being served with the attachment. On the 20th of August, Samuel Birch, one of the Plaintiffs, having met Plaisted, in Salisbury-court, Fleet-street,laid hold of bim and served him with a copy of the rule for the attachment, and endeavoured to take him to the chambers of Mr. Luke Naylor, Birch's then attorney, in the Temple. On Plaisted's resisting, a mob was collected round him ; he was put into a hackney-coach, and carried by force to Naylor's chambers. 'He was there served with the origi nal rule for the attachment, having been detained some time while Samuel Birch sent to his brother Thomas Birch for the original rule. Immediately after this, he was dismissed by the Plaintiffs from Naylor's chambers, but had no sooner got down the staircase of those chambers than he was arrested upon the above-mentioned attachment by Shapcott,who stated that he had been sent for to make the L 2, arrest. Nov. 27th. An attachment, for non-payment of money to A., having issued against B.. from this Court, and the process being in the hands of an officer who had not been able to serve B. therewith. B. was met by A. in the street, and carried by violence to the chambers of C., who also was sent for he was arrested. The Court held this arrest illegal, and discharged B. 1804. BIRCH and Another 17. PRODGER and Another. arrest. The Plaintiffs expressly denied being privy to the arrest, and Naylor denied being privy to any plan for bringing Plaisted to his chambers. Shepherd Serjt. shewed cause against the rule, contending that as the process was regular, and the conduct of the officer legal, there was no ground for the Court to interfere; and observed that, as the arrest in this case was for a contempt of the Court, which had been considered as amounting to a breach of the peace, it was allowable to use other means for effecting the arrest than might be employed in the case of mere civil process. Bayley and Best,Serjts. contra, insisted that as the first detention was illegal, the party was entitled to his discharge, though the process was regular, and no action might be maintainable against the officer if not privy to such illegal detention. They cited Loveridge v. Plaistow, 2 H. Bl. 29. and Barlow v. Hall, 2 Anstr. 461., in both which cases the Defendants were discharged on account of the illegality of the original detention; and observed that there was no authority for making any distinction between the process in this case and any other civil proand that the only question here, as in the case of Barlow v. Hall, ought to be whether the process of the Court had not been abused. cess, Sir JAMES MANSFIELD Ch. J. I do not believe that those who took Plaisted to Naylor's chambers had then any idea of arresting him. But the distinction is verynice between carrying a man by force to a place for the purpose of having him arrested, and carrying him there by force for another purpose, and then causing him to be arrested. If Shapcott was sent for, it is very much like an arrest by Shapcott under a detention at the chambers of Naylor, which brings the case very near to those which have been cited, We shall take an opportunity of speaking with the other Judges upon the subject, and if they shall be of opinion that Plaisted ought to be discharged, an order for that purpose shall be drawn up as of this day. Though the conduct of Plaisted has been such as fully deserves the confinement which he has suffered, yet we must not decide this case by any other rule than what would be applicable to all others. Certainly arrests by violence must not be encouraged. They lead to serious consequences. If we should think that the party ought to be discharged notice shall be given, and an order drawn up; An order was afterwards given to make the rule ab solute for the discharge of Plaisted, TH MILLS V. HEAD, HE Defendant having been arrested in the long Nov. 27th. Where bail have been rejected, the Defendant cannot bail. All Souls, bail above were put in on the 9th of November, surrender without and notice of justification given. The bail being brought putting in fresh up, in pursuance of this notice, were rejected; after which the Defendant surrendered himself, without putting in fresh bail. The Plaintiff upon this took an assignment of the bail bond, and commenced proceedings against the bail to the sheriff. A rule nisi having been obtained for setting aside the assignment of the bail bond, and proceedings thereon, Best Serjt. shewed cause, and contended that the Defendant's surrender was irregular, there being no bail in existence by whom it could be made. Onslow Serjt. contrà, insisted that so long as the bail remain upon the bail piece, they are competent to súrrender, though rejected. He cited The King v. The Sheriff of Essex, 5 T. R. 633., where, in consequence of an exception to the bail put in, notice was given that two other bail would justify, one of whom was afterwards rejected, after which the Defendant was surrendered, and the master of K. B. stated to the Court that there should have been a rule to strike out the two first bail whose names stood on the bail piece; and that until that was done they might surrender the principal. He also read a manuscript note of a case decided in the King's Bench, East, 40 G. 3. (a), But The Court, after referring to the officers, said, That although any bail were sufficient to surrender, yet when rejected they were no bail, and that it was not ne cessary to obtain a rule to strike them off the bail piece, Rule discharged, (a) Apon. May 24, E. 40 G. 3. to justify the one, made the case On shewing cause why an attach-the same as if none had been put ment against the sheriff, for not in. He cited for this Tidd's and bringing in the body, should not be Sellon's Practice. set aside for irregularity with costs, it appeared that the bail surrender ed the Defendant on the day when the rule expired, but one bail only had justified, and time had been refused by the Court to justify another. Espinasse contended that no bail were in Court to make the surrender, that time having been refused But The Court said (on referring to the Master) Even bail rejected, while on the bail piece, are competent to make a surrender. The books cited are not of themselves to be quoted as authorities. Rule absolute for setting aside the attachment. Marryatt for the rule, 1 1804. THE MAYCOCK V. SOLYMAN. Nov. 27th. The Defendant has four days, exclusive, from the day of the exception, to justify bail. And if an attach THE Defendant, having been arrested upon a writ returnable the first return of this term, put in bail upon the 9th of November; on the 13th, the sheriff was ruled to bring in the body; on the 16th, the bail were excepted to; on the 20th, an attachment was obtained; and in the latter part of the same day, the bail were brought up to justify and were rejected. A rule nisi having been obtained for setting aside this calling on the Deattachment, Cockell Serjt. in the first place insisted that the sheriff was not entitled to move to set aside the attachment, without having first justified bail; and secondly, that the Plaintiff had a right to move for an attachment on the 20th, the rule to bring in the body having expired on the 17th, Shepherd, Serjt. contra, argued that where the objec tion to the attachment is that it has been moved for too soon, the sheriff is not bound to justify bail before he moves to set it aside; that as bail were put in within time, the Defendant was not bound to justify them, unless an exception were entered, consequently there was no default in the sheriff on the 13th, when the rule to bring in the body issued, and that rule was altogether irregular; and that as the exception was not entered till the 16th, the Defendant therefore was entitled to the whole of the 20th to justify. The Court thought that the sheriff was entitled to move to set aside the attachment, without having first justified L 4 ment be obtained on the fourth day, the Court will set it aside, without first fendant to justify bail, |