
    State, ex rel. John Estill, v. W. M. Endsley, Sheriff.
    (Nashville.
    December Term, 1909.)
    1. ARREST. Sheriff, without a warrant, has no authority to rearrest a prisoner improperly released by him.
    Where the sheriff wrongfully and unlawfully discharged a prisoner before the expiration of his term of imprisonment imposed as punishment upon his conviction of the commission of an offense, by releasing him to another upon his payment of the fine imposed and the costs, upon the agreement of the prisoner to remain with his liberator and work for him until he should .be repaid, the sheriff acted improperly and without authority in rearresting the prisoner without a warrant. (Post, pp. 649, 650.)
    Case cited and approved: McCaslin v. McCord, 116 Tenn., 690.
    2. HABEAS CORPUS. Prisoner unlawfully discharged and improperly rearrested without warrant is properly in custody under original commitment, and is not entitled to be released.
    A prisoner so improperly discharged before the expiration of his term of imprisonment, and released to another upon his payment of the fine and costs, and wrongfully rearrested by the sheriff without a warrant, is not entitled to be released upon a writ of habeas corpus; for, upon regaining the custody of the prisoner, it was the duty of the sheriff to hold him under the original commitment until the satisfaction of its demands, upon the principle that where one is properly in custody, the unlawfulness of the manner by which the custody was obtained is immaterial. (Post, p. 650.)
    Cases cited and approved: Cook v. Hart, 146 U. S., 183-195; Re Johnson, 167 U. S., 120-122.
    
      3. IMPRISONMENT AND FINE. Sentence of imprisonment must be served before prisoner can be bailed out to work out fine and costs.
    A prisoner must first serve out tbe time for wbicb be is sentenced, and then work out bis fine and costs. After tbe time of imprisonment bas been served, tbe prisoner may be, witb bis consent, bailed out to any one wbo will secure bis fine and costs. Sucb bail cannot be given, however, until tbe term of imprisonment imposed as part of tbe punishment bas been served. (.Post, pp. 650, 651.)
    Code cited and construed: Secs. 7417, 7424 (S.)
    FROM DAVIDSON.
    Appeal from tbe Criminal Court of Davidson County. — W. M. Hart, Judge.
    Smithson & Armstrong, for relator EstilJ.
    Assistant Attorney-General Faw, for Endsley.
   Mr. Justice Neil

delivered tbe opinion of tbe Court.

This was a habeas corpus proceeding, instituted before Hon. W. M. Hart, judge of tbe criminal court of Davidson county. After bearing tbe case be declined to release tbe prisoner, and remanded bim to tbe custody of tbe sheriff. Tbe prisoner thereupon prayed an appeal to this court, and bas here assigned errors.

It appears that on March 19, 1908, the relator was tried in tbe circuit court of Marshall county for selling intoxicating liquors without license, and was convicted and sentenced to undergo confinment for the period of six months in the county jail as a workhouse of the county, and also to pay the sum of fifty dollars fine and all costs of the cause. It was further adjudged that, in default of his paying the fine and costs, he should be confined in the said county jail until such further time after the expiration of the six months’ sentence as would be necessary to pay the fine and costs according to law. The imprisonment began on the 24th of March, 1908. He was kept in jail until the 14th day of May, 1908. On that day the sheriff, by an arrangement made with the county court and one Wheeler, released the prisoner to Wheeler, who paid his fine and costs; the prisoner consenting to remain with Wheeler and work until he should be repaid. Subsequently the sheriff, having reached the conclusion that he had acted wrongfully and unlawfully in releasing the prisoner before his six months’ term of imprisonment had expired, rearrested him and put him in jail, there to remain'until his six months’ time should expire. This rearrest was made without a warrant. Upon this being done, the petition for hateas corpus was sued out.

The first question is whether the sheriff acted properly in rearresting the prisoner without a warrant. We think he should have had a warrant. We find no authority for the sheriff’s arresting a prisoner for a crime not committed in his presence, or in fresh pursuit, where there is sufficient time to get a warrant, even after he has escaped from jail. The subject is discussed in tbe case of McCaslin v. McCord, 116 Tenn., 690, 94 S. W., 79.

The second question is: Should the prisoner, for the reason stated, be now released? We think not. The sheriff had no right to release the prisoner in the first instance, and, having again obtained the custody of him, he would hold him under the original commitment. He may have been guilty of a technical wrong in rearresting the prisoner without a warrant, and may be liable for at least nominal damages therefor; but this does not change the principle that, having regained the custody of his prisoner, it was his duty to hold him under the former commitment until satisfaction of its demands. The principle is substantially the same as that which underlies the cases holding that although a prisoner has been unlawfully seized in a foreign State, and brought into a State where an indictment is pending against him, from which he has fled, he may still be held under process of the latter State, and tried on the charge, and that he will not be released in habeas corpus proceedings because of the original wrongful arrest or seizure. Cook v. Hart, 146 U. S., 183-195, 13 Sup. Ct., 40, 36 L. Ed., 934, and cases cited; Re Johnson, 167 U. S., 120-122, 17 Sup. Ct., 735, 42 L. Ed., 103, and cases cited.

There are two sections of Shannon’s Code which show what the duty of the sheriff was while he yet had the prisoner in custody. They are sections 7417 and 7424. According to section 7417 the prisoner must first serve out the time for which, he is sentenced, and then work out his fine and costs. According to section 7424, after the time of imprisonment has been served, the prisoner may he, with his consent, hailed out to any one who will secure his fine and costs. Such hail cannot he given, however, until the original term has been served. It had not been served in this case, and the release on bond was premature.

It results from what has been said above that there is no error in the judgment of the trial judge, and it must be affirmed.  