General requisites and form. Witness T. C., Clerk of our said court, this [The day the writ is issued] day of -A. D. Attest, T. C., Clerk. The clerk will indorse upon the back of this writ, the cause of action, as directed by the praecipe, and the amount appearing to be due, or sworn to, and the amount for which the bail is required to be taken, as the same are stated in the praecipe, or the order of the court, or of the judge. If the proper indorsements are not made upon the writ, the defendant may, on motion at the appearance term, be discharged on common bail, or have the proceedings set aside by quashing the writ.8 A misnomer of the christian or surname may be taken advantage of by plea in abatement, or perhaps by motion to discharge on common bail.9 The same indorsement of surety for costs, in case the plaintiff is a non resident of the county in which the action is brought, is also necessary, as in the case of a summons.10 FORM OF CAPIAS, WHEN ISSUED TO THE SHERIFF OF THE COUNTY WHERE ONE OF THE DEFENDANTS RESIDES. [SEAL.] The State of Ohio, Franklin county, ss. To the sheriff of Hamilton county, GREETING: Whereas, E. F., who resides in our said county of Hamilton, and C. D., who resides in our said county of Franklin, are jointly [and severally] bound to A. B., by a certain [Here describe the instrument or contract substantially, in the words of the praecipe; that is, the kind of instrument or contract, date, amount, &c.] And, whereas, the said A. B. hath filed with the clerk of our said Court of Common Pleas of Franklin county, aforesaid, his affidavit, in due form of law, setting forth that there is justly due to him from said E. F. and C. D., upon said contract, above mentioned, the sum of dollars, and establishing, in and by said affidavit, that the said E. F. and C. D. [Here state the particular established by the affidavit, which authorises the issuing of the capias. And also state here, if the fact be so, the order of the court, or judge, directing the issuing of the capias.] And, whereas, the said A. B. hath filed with the said clerk a praccipe, in pursuance of the statute in such case made and provided, for the purpose of commencing a suit against the said E. F. and C. D., in the premises, and directing, in and by said praecipe, amongst other things, that a capias ad respondendum should be issued against the said E. F., to our said sheriff of the county of Hamilton, in which said county of Hamilton the said E. F. resides. We therefore command you, to take the said E. F., if he may (8) 10 Ohio Rep. 263. 267. (9) 10 Ohio Rep. 263. 265; see 4 Cowen 148, and notes to Chap. XI, post. (10) See ante, p. 112. By whom and when to be made. be found in your bailiwick, and him safely keep, so that you have his body before our Court of Common Pleas, of the county of Franklin, aforesaid, at the court house in said county, on the first day of their next term, to answer, together with the said C. D. unto the said A. B., in a plea of [&c. Here state the action, &c., and conclude as in the preceding form. Indorse the writ as hereinbefore directed.]11 SEC. VIII. THE ARREST. 1. By whom. The arrest should be made by the sheriff; or by his deputy, appointed by certificate, under the approval of the court. 12 The coroner executes process of every kind to which the sheriff is a party or interested,13 and also, as well during the vacancy in the office of sheriff, as after the expiration of the office of sheriff, in case a successor is not elected.13 If the office of sheriff and coroner are both vacant, or they are incapable of serving any process, when required to be served, by reason of absence, sickness, or other disability, or incompetent from interest, some suitable person may be appointed by the Court of Common Pleas, or Associate Judges thereof,14 to serve the same. The responsibility of, and proceedings for misconduct against, the coroner, or person appointed by the court, are the same as when a sheriff acts.15 In general, the officer, to whom the writ is directed, or his deputy, must be acting in the arrest; for, if it be made by another, it is void, and false imprisonment lies. 16 But it is not necessary that the officer should make the arrest, or even be within sight when the arrest is made; he, or his deputy, must, however, be acting in the arrest;18 he or his deputy cannot go upon another business, or stay at home, and send a third person, not a regular deputy, to make it.19 2. When. The arrest may be made at any time before, or on the return day of the writ,20 and at any hour.21 It must not, however, be made on Sunday, nor on the fourth day of July, as it will be void.22 Where, by the contrivance of the attorney for the plaintiff, a party had been arrested on criminal process on Sunday, for the purpose of affecting his arrest on civil process, and he was detained in custody until Monday, and then arrested on civil process, and detained in custody, the King's Bench discharged him from custody, upon the terms, that he should bring no action, if the attorney paid the costs within two days.23 Bail may take their principal on Sunday, or on the fourth of July, or in any place, for they are the jailors When and where to be made. of their principal ;24 or, after a negligent escape, the defendant may be retaken on Sunday, or the fourth of July, or at any place, it not being an orignal taking, and the party being considered as still in custody; but he cannot be retaken on such day, or at a privileged place, after a voluntary escape.25 A return that the defendant is sick and cannot be removed without danger to his life, and that he continued so at the return of the writ, is, when true, a sufficient excuse for not executing the writ.26 3. Where. The arrest may be made at any place within the county, to the sheriff of which, the writ is directed; and upon any river or water course which divides the county from a neighboring state. 20 If arrested out of such county, the defendant will, on motion, be discharged;21 but it must be shown that it was, without dispute, beyond the limits of the county. We have already seen22 that where a party is brought into the jurisdiction of the sheriff by fraudulent contrivances, he cannot be arrested. No person can be arrested on civil process in the Senate Chamber, or House of Representatives, during their sitting; or in any court of justice, during the sitting of the court;23 nor in his own house, if the outer door be shut.24 A dwelling house is a protection from arrest, upon civil process, to the occupant, his children, and domestic servants, and to permanent boarders, or those who have made the house their home, and are, consequently, a part of the family.25 It seems a mere guest is also protected.26 Though the outer door is closed merely by being latched, in the ordinary way, the officer has no right to enter for the purpose of making an arrest upon civil process; and what would be a breaking of the outer door in burglary, will be equally breaking by an officer who enters to make such arrest.27 If the master of the house, or one of his family, flee to the house to avoid an intended arrest, the officer will be liable in trespass for entering the house forcibly, in pursuit. It is otherwise, however, if an arrest has been made, and the flight take place upon an escape.28 If the outer door be open, the officer may break open an inner door to arrest the defendant.29 Before he breaks the inner door of a room, in which the defendant has secreted himself, he need not demand admittance; the law, however, will not permit him to use any unnecessary violence.30 When the defendant is in the house of another person, without any view to avoid an arrest, the officer cannot, in general, break open the house to arrest the Where and how made. defendant. But if the defendant flee to the house of another, to avoid the officer, or if the owner of the house purposely secrete the defendant there, the outer door may be broken open to arrest him.31 In such case, the officer should, and it is prudent for the officer in all other cases, to demand admission, and make known, as well as he can, his object, before he uses violence to break open a door. If the defendant does not enter the house of another for the purpose of evading process, or the owner does not connive with him in that purpose, the officer cannot, it seems, enter if the door be shut. He may peaceably enter the open door of the house of another, without permission, provided the defendant be actually therein; and, after entering, may brake open inner doors, in order to arrest the defendant;32 but if the defendant be not there, he will be a trespasser, even though there was probable cause for his supposing that the defendant was there.33 If a man let out part of his house, reserving for himself and occupying an inner room, an officer, entering through the outer door of the house, being open, may, after demand of admittance,34 break open the inner door to arrest him.35 The privilege annexed to a dwelling house, does not extend to a store, barn, or outhouse, disconnected from it, and forming no part of the curtilage.36 They may be broken open, if the defendant is there, and under the same circumstances and liabilities as the inner door of the dwelling house of a third person may be broken open, to arrest the defendant.37 If an officer break open an outer door to execute civil process, except in the before named cases, he is a trespasser, and the defendant may defend himself as against any trespasser. It is said that though by such illegal act the officer become himself a trespasser, yet that the service by him, after such breach and entry, is legal and valid. But this seems doubtful;38 as it has been decided, that where there has been an irregular arrest, and advantage taken of it, to charge the person in custody, at the suit of another, the court will discharge from both arrests.39 4. How. The arrest is usually made by actual seizure of the person, to constitute which, any touching, it seems, however slight, of the defendants' (31) In Howe's Mass. Prac. 149, the rule is thus laid down: "An officer may justify the breach of a house to arrest, or seize the goods of any person therein, other than the owner, the owners's children, domestics, permanent boarders or inmates, who have made the house their home; because it is to these alone, and to goods lawfully in the house, without fraud or covin, that the privilege of the house, as a castle, is confined." quere. See 1 Hill, N. Y., 336. (32) 4 Taunt. 619. But (33) 1 Eng. C. L. Rep. 374, 258; 5 Taunt. 765. The difference between the officer breaking open the inner doors of the defendant's house, and of another person's, is this. the justification of the officer for breaking open the inner doors of another, to arrest the defendant, depends upon the fact, whether the defendant was actually in the house— the officer is justified or condemned by the event; but when the inner door of the defendant's own house is broken open, the officer will be justified, although the defendant was not there, if the officer were honestly seeking the defendant. (34) 3 B. & P. 223. \ (35) 5 Johns. 352; Kirby, 386. (36) 16 Johns. 287. (37) See preceding note 33. (39) Yelv. 29, a, n. 1; 1 Atk. 152; 15 Eng. C. L. Rep. 336. How made-Mistake in an arrest. person, is enough; as laying hold of a defendant's hand, which was out of a window.40 It is held in New York, that no manual touching of the body, or actual force is necessary to constitute an arrest and imprisonment; that it is sufficient if the party be within the power of the officer, and submit to the arrest.41 Mere words, however, such as the officer telling a man that he arrests him, or the like, cannot of themselves, amount to an arrest.42 It is not necessary that the officer's should be the hand that arrests; for, when necessary, he may call others to his assistance; and, in such case, the acts of his assistants will be deemed his own, so long as he is himself acting in the arrest, or is near at hand, though not actually in sight.43 It seems the defendant cannot demand of the sheriff the production of the writ, before the arrest;44 but it is always safest for the officer to show the writ, if the defendant in good faith demands its production. After service, or when the defendant has submitted to the arrest, if the defendant demand it, and not otherwise, the officer is bound to make known the cause of the arrest.45 A special deputy, however, and perhaps a newly appointed officer, also, ought to show the writ before executing it.46 The refusal of the officer to show his writ, when bound so to do, will not make him a trespasser ab initio. But it seems the service may in such case be set aside for irregularity.47 5. Mistake in an arrest. If the defendant be rightly named in the writ, but the sheriff execute his process upon the wrong person, though of the same name with the right one, he will be a trespasser. And it would be the same, though the person arrested, declared that he was the individual named in the writ.48 If the writ describe the defendant by a wrong name, unless he be known as well by that given him as by his true one, the officer cannot arrest him. If he do, the defendant may not only plead in abatement, but may also maintain an action of trespass against the officer, for false imprisonment.19 (40) 1 Salk. 79. (41) 1 Wend. 215; see 2 N. Hamp. 318; 1 Bald. 239; Harper, 453; 2 B. & P. 211; 3 Campb. 139; 1 Salk. 79. Where the officer entered the room in which the defendant was, and locked the door, telling him at the same time that he arrested him, the court held it to be a good arrest. Archb. Pr. 72; cites Hardw. 304. And where an officer and the defendant were together, and the defendant said he surrendered, and the officer thereupon said he had appointed a third person to be his keeper; this was held to be sufficient evidence of an arrest. 8 Greenl. 127; see 2 New Rep. 211, 212, (42) 6 Mod. 173; 11 Eng. C. L. Rep. 153; 14 Eng. C. L. Rep. 391. (43) Cowp. 63; 10 Johns. 86; see ante, (45) 1 Cowp. 63; 7 T. R. 654; Bac. Ab. Shff. (47) 9 Eng. C. L. Rep. 236; Howe's Mass. Prac. 152. (48) 1 Burr. 210. (49) 6 T. R. 234; 8 East. 328; 4 Eng. C. L. Rep. 331; 7 Cowen 332; 6 Id. 456. |