
    Andrew Abells against John Chipman, Esquire, Sheriff of Addison County.
    TT , Upon the guprender of the principal by his bail on in a justice’s ^strate^'an™^ cuSod^of s<5ne Fjpper oihcer. li there be none sucbpresent, he can. appoint one, tain hiu^upon of6 the*'°maj:s^ustice^Comt butThe^officeic,ann.ot. justify detaining his prisoner one moment after the Court is or^tiíout day! mittimus fmm the ^qst"ce'
    TRESPASS on the case, for an escape.
    The declaration sets forth, that the plaintiff, on - 1 the 10th day of July, 1795, purchased out his writ of attachment • against one Benjamin Barnes, returnable before Boswell Hopkins, Esquire, one of the Justices of the Peace within and for said County, on the 18th of said July. That he committed this writ to Azariah J Painter: the sheriff’s deputy, who arrested the body , , J of 'Barnes, and took one Risden as bail. That on the day of the Court, in open Court, Risden delivered up his principal. That the sheriff’s deputy, Painter, being present, the Justice commanded Barnes into his custody, but that Painter refused to take charge of him, whereby he escaped and went at large. That ^ 1 ° judgment in the Justice’s Court was rendered for the . . „ plaintiff; defendant appealed, and" plaintiff recovered a final judgment at the County Court for the sum of 71. 2s. lawful money, damages, and 81. 2s. 9d. lawful money, costs of suit. That within thirty days from the rendering of the final judgment, he purchased out his writ of execution against Benjamin Barnes, and delivered it to the same sheriff’s deputy, who in due time returned it non est. Profert made of the records of the several Courts, and an averment that the plaintiff hath totally lost his debt by the escape.
    Plea not guilty, and issue to the Jury.
    
      It appeared from the records of the Justice’s Court, that on the original writ the following return was indorsed :
    Date.
    Then, in obedience to this precept, I arrested the body of the within named Benjamin Barnes, and accepted Onesiphorus Risden as bail for his appearance at Court, and caused him to indorse his name on the writ.
    
      Azariah Painter, Sheriff’s Deputy.
    It also appeared, that Risden delivered up Barnes, in open Court; that the Justice directed Azariah Painter, then present, to take charge of him.
    The other allegations in the declaration were conceded.
    The single point made in the defence was, that after rendering the principal into Court, and his commitment by order of the Justice to the custody of the officer, he was not obliged by law to keep or commit him to gaol without a mittimus from the Justice.
    To this it was replied, that no mittimus was made out, because the officer repeatedly refused to' take Barnes into custody.
    The plaintiff offered to prove this by parol testimony.
   Sed per Curiam.

It cannot be admitted. The officer s refusal is dehors the record, which merely shews that the Justice ordered Barnes into custody. Indeed this circumstance, if it existed, would have been very improperly attached to the record. When a magistrate of this State commands a proper officer to do a legal duty, his consent is to be presumed.

The cause now went to the Jury, upon the specifications of the record.

The Court, in their charge to the Jury, observed, that they had no doubt but that, upon the surrender of the principal-by bail on mesne process in a Justice’s Court, the Justice had power to order him for the time being into the custody of a proper officer.

The statute provides, “ that where no proper officer shall attend any Justice’s Court, and it is necessary there should be some officer for the due exercise of his or their respective jurisdictions, such Justice or Justices shall have power to appoint some proper person to fill the place of such proper officer.”

Here a proper officer, the defendant’s deputy, was present.

But this power in the Justice to order into custody, and in the officer to hold his prisoner without written precept, can operate only while his Court is in session.

This Court possess no such plenitude of power as to imprison a person beyond the limits of their session.

In cases where the surety on mesne process surrenders his principal in a Justice’s Court/it is the duty of the Justice to order the person surrendered into the custody of a proper officer, if there be one present; if not, he is to appoint some suitable person to fill the place of such proper officer, and order him into his custody. If judgment final be rendered for the plaintiff, he should make out his writ of execupon before the rising of his Court, that the defendant may be charged with it. But in cases where the cause is continued to an adjourned, session of the Justice’s Court, or where an appeal is taken to the County Court, the Justice should, before he adjourns his Court, make out and deliver to a proper officer a mittimus in due form, stating therein the grounds of issuing it, and commanding, in and by the authority of the State, such officer to commit the prisoner to the common gaol of the County, and likewise commanding the keeper of the prison to receive and him safely keep within said prison, until he shall be liberated by due course of law ; and of these proceedings the Justice should make record.

Samuel Miller and Josicis Smith, for plaintiff.

Amos Marsh and Daniel Chipman, for defendant

If this be omitted, the officer cannot one moment after the rising of the Justice’s Court be justified in holding his prisoner, and therefore cannot be chargeable with his escape.

Verdict for the defendant, and his costs.  