3 Del. 568 (Del.Oyer.Ter. 1842), State v. Mahon

Citation3 Del. 568
Opinion JudgeBooth, Chief Justice.-
AttorneyGilpin, Attorney-general, and Wm. H. Rogers, for the State. J. A. Bayard, for defendant.
CourtCourt of Oyer and Terminer of Delaware

Page 568

3 Del. 568 (Del.Oyer.Ter. 1842)




Court of Oyer and Terminer of Delaware.


Fall Sessions, 1842

Special bail may arrest his principal any where.

He may depute others to do it; but the arrest must be by such deputy, or others assisting him.

An arrest must be without violence, unless there be resistance.

The defendant was indicted for an assault and battery on Alexander B. Crawford. He justified under authority of one M'Cullough, the special bail of Crawford.

It appeared in evidence that on a suit against Crawford in Cecil county, Maryland, M'Cullough became his special bail (as he alledged without his authority,) and took out a bail piece, and in writing deputed one John West to arrest Crawford, with power to employ others to assist him. He spoke to Mahon, the defendant, to help him arrest Crawford, and they went together to Newark for that purpose. They stopped at the tavern, and West sent Mahon to Crawford's residence to invite him to the tavern, under pretence of selling him a horse, where West was to make the arrest. He remained at the tavern and had the bail piece in his possession, Upon meeting with Crawford, Mahon seized him by the collar, and took him by force to the tavern.

Gilpin, Attorney-general, and Wm. H. Rogers, contended that the justification was not made out, 1st. Because there was no proof that the bail piece now produced was ever delivered to John West. 2d. That the power under the bail piece was personal to West, and could not be deputed by him to Mahon. 3d. That it did not justify the arrest by Mahon without any deputation to him in writing, or without the presence of West; and 4th. That Mahon had exceeded his authority.

J. A. Bayard, contra, contended that special bail had the right to give a verbal authority to any one else to assist him in arresting his principal. The record is conclusive as to the entry of special bail. If it was without authority, it would be vacated on motion to the court where it was entered; but here it is conclusive. Special bail has the custody of his principal. He can take him anywhere. And he may employ any one, in any way, to take him. The principal has no right to go about but by the leave of the special bail; and the bail may withdraw that leave at any moment, and enforce obedience, by calling in any other person to his aid. The bail need not be...

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