
    No. 112.
    Obadiah Abbott, plaintiff in error, vs. James H. Holland, defendant in error.
    
       It is no excuse to a Constable who fails to bring in a defendant whom he has arrested on a ea. sa. that the defendant was rescued by a mob.
    Rule, in Coweta Superior Court. Decided by Judge Hammond, March Term, 1856.
    At the December Term, 1855, of the Justice’s Court for the 992d district, Coweta County, James II. Holland ruled Obadiah Abbott, a Constable for said district, alleging in his rule nisi that ho had placed ea. sas. against one George W. Mirick in the hands of said Constable, who failed to execute the same.
    In answer to the rule, the Constable stated, that in July, 1855, he did arrest the defendant in ea. sa. and placed him in the hands of a guard, from whom he escaped on the same day; that he pursued the defendant three several times afterwards, and was each time unable to arrest him until the 7th day of October, 1855, at which time he re-arrested the defendant when he was rescued from his custody by a mob.
    The Court, on motion, refused to make the rule absolute ; whereupon, Holland sued out a writ of certiorari to the Superior Court.
    The .Court sustained the certiorari, and ordered the Justices in the Court below to make the rule absolute, and Counsel for Abbott excepted.
    
      G. M. Robinson, for plaintiff in error.-
    J. M. Powell, for defendant in error.
   By the Court.

Benning, J.

delivering the opinion.

The question in this case is, whether a Constable who has arrested the defendant in a ca. sa. is liable to a rule for an escape, if the defendant has been rescued from him by a “mob?” The Court below held that a Constable is; and this decision, as we think, was right.

The only sort of rescue which, it seems, will excuse the Sheriff from not bringing in the body of a defendant whom he has arrested on a ca. sa. is that which is by the “King’s enemies.” A rescue by “rebels” or “traitors” will not do. Much less, therefore, will a rescue by a mob do. (Sewall on Sh'ff 388-'9; Bac. Abr’g’t “Escape;” Com. Dig. “Rescon’s” (D. 7.)

A Sheriff, by the Judiciary Act of 1799, may be ruled for an escape. (Cobb’s Dig. 1142.)

And by an Act of 1812, “ Constables shall be subject to be ruled by their respective Justice’s Courts,” “ under the same regulations as are pursued in the Superior Court in relation to offiesrs of said Court.” (Cobb’s Dig. 649.)  