
    Edward Brissac vs. Daniel Moorer, Sheriff.
    There are two modes of holding to hail by the Act of 1769. In cases of debt, an affidavit of the amount, and of the evidence of indebtedness, annexed to or indorsed on the writ, is of itself a requisition of bail. In all other cases their must be an order by a Judge, clerk of the court, or a justice of the quorum ; and in such cases the order only need be annexed or endorsed.
    The clerk has no authority to rescind an order for bail after it has been delivered to the sheriff and executed by him — nor will such rescission, or the insufficiency of the affidavit upon which the order is predicated constitute a good defence in an action brought against the sheriff for an escape.
    BEFORE EVANS, J., AT COLLETON, FALL TERM, 1837.
    The plaintiff, Brissac, issued a writ against one Tardy. There was an affidavit of the debt amounting to three hundred and thirteen dollars and thirteen cents, but not stating the nature of the indebtedness. On this an order for bail was signed by Campbell, the clerk, and the .plaintiff’s writ was lodged with Moorer, the sheriff', and Tardy was arrested. Whilst he was in the custody of the defendant, the clerk obliterated the order for bail which he had signed in the plaintiff’s case, believing that the affidavit on which it was founded was insufficient. The sheriff supposing that he then had no authority to detain him, served him with a copy of the writ and permitted him to go at large. The plaintiff obtained judgment against Tardy, but he had previously removed from the State, carrying with him whatever effects he had. The present action on the case was then commenced against the sheriff for an escape. It was contended for the defendant that the affidavit on which the order for bail was predicated, being insufficient, and the clerk having rescinded the order, that the sheriff' no longer had any right to detain Tardy in custody, and therefore had acted properly in discharging him.
    The presiding Judge was of opinion, and so instructed the jury, that the order for bail having been granted, the sheriff was bound to obey and could not look beyond it, — that the clerk had no authority to rescind an order which had been delivered to the sheriff and executed by him.
    
      The jury found for the plaintiff the whole amount of his demand.
    The defendant appealed, and moved for a new trial, on the following grounds:
    1st. Because the affidavit annexed to the writ in the case of Brissac vs. Tardy, was illegal, and did not empower the sheriff to arrest him.
    2d. Because there was no order for bail.
    3d. Because the verdict was in other respects contrary to law and evidence.
    
      J. D. Edwards, for the motion.
    
      A. Rhett, contra.
   Curia, per Evans, J.

This is a hard case on the sheriff, and if it .could be done consistently with the rules of law, I should be rejoiced to discharge him from his liability. But when an executive officer undertakes to discharge one whom be has arrested, on the supposition that his authority is defective, he cannot complain, should his judgment prove erroneous, that he is made liable for its consequences. It is an incident of his office.

In this State there are two modes of holding to bail. In money contracts, such as bonds, notes, or accounts, it is sufficient authority to the sheriff to arrest and hold to bail, that the plaintiff swears to the amount due him on the bond, note, or account. In other cases affidavits of the facts on which the action is founded, are submitted to a Judge, clerk of the Court, or justice of the quorum, who is authorized by law to grant an order for bail in such sum as the case may require. The words of the Act of 1769, P. L. 273, are, “ and no person shall be held to bail on any writ of capias ad respondendum for debt, unless an affidavit shall be made before aud attested by some Judge or justice of the peace, and endorsed on or annexed to the writ, before the service thereof, of the sum really due; nor for any other cause without a Judge’s order, on probable cause of action shown, to be endorsed on or annexed to the said writ, expressing the sum for which bail shall be given.” The power given by this Act to a Judge, is given by the Act of 1799, 2 Faust, 314, to the clerks of the Court, and the justices of the quorum.

In the case under consideration, there was an affidavit of the amount due by Tardy to Brissac, but it was not stated in the affidavit, in what way the debt was due, whether by bond, note, or account; and this affidavit was annexed to the writ. There was also an order endorsed on the writ and signed by the clerk, for bail in the sum of four hundred dollars. In the case of Peck & Hood vs. Van Evour, 1 Nott & M’Cord, 520, the bail was discharged on the ground of insufficiency in the affidavit, it not being stated on what the debt was due. The same objection exists in this case, and I apprehend if the sheriff had required bail of Tardy on this affidavit alone, the bail would have been discharged. But it does not follow as a consequence that the proceeding would have been void; on the contrary, I apprehend if no order for discharge was made, and the bail had not surrendered their principal, they would have been liable on the bail bond. Tf a sheriff hold a man to bail on defective affidavit, I should consider it a mere irregularity, and the sheriff would not be liable in false imprisonment. If the sheriff knowingly arrest a man who by law is not liable to arrest, as was done in the case quoted from 4 Johnson, 433, of the soldier, the arrest would be void and he might discharge him; but it is unlike this case.

The ground, however, on which this case was decided on the circuit, was, that there was endorsed on the writ an order by a competent officer, requiring the sheriff to hold Tardy to bail in four hundred dollars. Here was. an order made by one having legal authority, requiring him to hold the defendant Tardy to bail, and it was incompetent for the sheriff to look beyond the order. He was not authorized to inquire' why or upon what affidavits or cause shown, the clerk had made the order. It was an ample protection to him, and he was bound to execute it. If he had been sued" for arrresting Tardy, the clerk’s order for bail would have been his ample justification; and it would not have been a sufficient replication to his plea, that the clerk had made the order on an insufficient affidavit.

It will be obvious on looking into the Act of 1769, there are two modes of holding to bail. In cases of debt, the plaintiff’s affidavit setting forth the amount due, and the evidence of indebtedness, is, of itself, without a Judge’s order,' a requisition of bail. In all other eases there must be an order by a Judge, clerk of the Court, or justice of the quorum. In the first case the affidavit is required to be annexed or endorsed on the writ; but in the latter case nothing but the order is required to be annexed or endorsed; from which it seems to me obvious that when there is an order for bail by a Judge, clerk, or justice, the sheriff has no authority to look beyond it. He is bound to execute it; and if, after arrest, be suffers the party to go at large without bail, it is an escape. I do not think it necessary to discuss the question whether after the arrest the clerk could rescind the order. When he had exercised his judgment on the application and made the order, the case was no longer under his control. As well might a Judge, after pronouncing a judgment, undertake to rescind it.

The motion is refused.

Butler, J.,

dissenting.

From the view which I have taken in this case I doubt too much to sign the opinion of a majority of the Court.

Tardy was arrested by virtue of an order of the clerk for bail. The clerk has a right to grant a special order for bail, which, of itself, would impose an official obligation on the sheriff to obey it. As long as it was in force, the arrest and detention of Tardy were legal. During the time that Tardy was in arrest, the clerk rescinded the special order which he had granted, leaving the arrest to depend on the sufficiency of the affidavit. In this state of things the sheriff discharged Tardy from actual arrest, and served a copy of the writ on him, as in cases where bail is not required. And I think he had a right to do so, if the clerk had a right to rescind his own order. For then the case stood as though the prisoner was detained alone on the authority of the affidavit, which was certainly insufficient according to the decision of Peck & Hood vs. Van Evour, requiring the affidavit to set forth the cause of action. The case then would be reduced to this, that Tardy was detained without an affidavit. Under such circumstances he was clearly privileged from arrest — as much so as any one could be who had the especial exemption and protection of the law, and no doubt would have been discharged at his own instance, if he had not been released by the sheriff . In other words, a sheriff has no authority to cle-tain in custody any defendant without the general authority of the law, which would have existed in this case if an affidavit had been made setting forth the cause of action, or the special order of a Judge or cleric, directing bail to he taken from particular facts sworn to. The sheriff had no authority from either of these sources; but had a citizen in custody, without either affidavit or an order for bail.

This conclusion of mine is based upon the supposition that the clerk could rescind his own order, and that he had done so. Like every mere interlocutory order proceeding from a judicial officer, I think the special order for bail was reversible, and had been set aside by the clerk. From these views I think the sheriff should not have been held liable for an escape by discharging Tardy from actual arrest, and holding him answerable as on an ordinary capias without an affidavit or order for bail.

The sheriff had the sanction of the clerk for what he did, and should not suffer for obeying such authority.

Gantt, J., concurred with Justice Butler.  