a wirdow of a dwelling-house. It has been already stated that an attachment cannot be made effectual by such means, and the same principle will apply to an arrest. Ilsly v. Nichols, 12 Pick. 270.

This is, however, the privilege of the owner, his children, domestic servants and permanent boarders, who may be said to constitute his family, and does not extend to strangers. Oystead v. Shed, 13 M. R. 520; Ilsly v. Nichols, 12 Pick. 270. But an officer cannot justify the breach of a house, upon suspicion merely, that the person or goods of one, not entitled to its protection, are concealed there; he must act at his peril, and be justified or condemned by the event. Ratcliffe v. Barton, 3 B. & P. 223.

When, however, an arrest has once been legally made, and a party has escaped to his house, the officer may break the outer door to retake him, (Foster's Cr. Law, 320); and when he has once effected a lawful entrance into the dwelling-house, he may break inner doors, trunks, closets, &c., and no previous demand of admittance is in such case necessary. Hutchinson v. Burch, 4 Taunt. 620; Williams v. Spencer, 5 J. R. 352. The privilege is confined to the dwelling-house, and does not extend therefore to stores, barns, outhouses, or any public buildings. Keb. 698; 1 Sid. 186

It is the duty of an officer, if so directed by the plaintiff, to arrest the defendant, but he is not required to do so, unless he has received special instructions to that effect. Rev. Stat. c. 90, § 110. And he may, in this, as in all other cases of the service of civil process, require an indemnity from the plaintiff, or that the person shall be pointed out. Marsh v. Gold, 2 Pick. 285. It was formerly held, that the officer could not justify himself for not making an arrest, by returning that he

was forcibly resisted, because he could command the posse comitatus, (Bac. Abr. Shff. N. 2); but it has been recently determined, upon full consideration, and apparently with good reason, that a sheriff is not obliged to summon the posse in the service of mesne process, (Buckminster v. Applebee, 8 N. H. 546; Griffin v. Brown, 2 Pick. 304); though he may do so. A return of rescue on mesne process is therefore a good return, but not upon an execution, for in that case it is his duty to summon the posse.

If he arrest the wrong person, he will of course be liable in damages to the party arrested. It would seem but just and reasonable, that if he arrest the right person, that is, the person intended by the writ, though not rightly named, that he would be justified, or at least liable for only nominal damages; but it has been determined by the same learned Court, that this constituted no justification, and a verdict for one hundred and fifty dollars was returned against the officer. 9 N. H. 406.1

As a general rule, an officer is not bound to show his writ before he serves it; but he is bound, after the arrest is made, to make known the cause of it, if it be demanded, and if he refuse to do so, the service may be set aside for irregularity. Thomas v. Pearce, 2 Barn. & Cress. 761.

1 Where a writ was sued out against George Melvil, and George Melvin was arrested on it and the writ was never returned, but it was admitted that he was the man intended to be arrested upon it, and he sued for an unlawful arrest, and recovered one hundred and fifty dollars damages, the Court said, "It is well settled that he who causes another to be arrested by a wrong name is a trespasser, even if the process was intended to be against the person actually arrested." Melvin v. Fisher, 9 N. H. 406; citing Crawford v Snatchwell, 2 Str. 1218; Cole v. Hindson, 6 D. & E. 234 ; Morgan v. Bridges, 1 B. & A. 647.

A bill in equity may be inserted in a common writ, and there may be some cases, in which an arrest may be authorized, but it cannot be made upon a bill be¬ tween copartners, the object of which is to procure an adjustment of their accounts, though the plaintiff allege that a large sum is due to him. Commonwealth v. Sumner, 5 Pick. 360.

CHAPTER XI.

BAIL.

WHEN an officer has arrested a defendant, and has him therefore in his custody, he is bound "to keep " him safely, according to the direction in the writ. He is authorized, therefore, to commit him immediately to the common jail, where he may be safely kept; but in practice, this course is unusual. A defendant is seldom arrested, unless there be a necessity for it, and then in such a manner as will be least likely to wound the feelings of himself and his friends; and I have never yet met an officer in Massachusetts, who was not willing and prompt to render every facility in procuring bail. If any officer should so far abuse his power, as to arrest a man, (for he cannot arrest a woman at all for debt,) at such a time or place, as would show that he intended personal insult or indignity, or if after being arrested, he refused to allow him reasonable facilities to procure bail, it is not to be doubted, that the laws of the country would afford adequate redress to the injured party, and that the officer would be immediately removed by the proper authority.

It is the right of a party to be released from arrest, on giving bail. "When a defendant is arrested, and in actual custody, it is the duty of the sheriff to take bail, if required." 1 Tidd, 223; 6 Durnf. & East, 355. This is a substitute, created by law, for actual imprisonment, and is given for the sheriff's indemnity, and it is only a certain form of security established by

law, to secure the defendant's personal appearance in the suit and performance of the judgment, without subjecting him to actual custody. Attachment of property and arrest of the person are but different means of effecting the same object, the performance of the ultimate judgment of the Court in the particular case. If a defendant is committed to jail, the officer's duty is ended, and bail may be taken by the jailer.

The Constitutions, both of the United States and of Massachusetts, declare, that excessive bail shall not be required. The remedy in such case is by suing out a writ of habeas corpus. Rev. Stat. c. 111, § 2; Jones v. Kelley, 17 M. R. 116.

The bail bond runs to the sheriff, if the writ is served by him or his deputy, otherwise to the coroner or other officer, by whom it is served, and is conditioned that the party shall appear and answer to the plaintiff in the suit, and abide the final judgment of the Court, and not avoid. Rev. Stat. c. 91, § 1. An officer is not required to accept a bail bond unless it be executed by two sureties at least, having sufficient within the county in which the principal is arrested or held in custody, and he will be liable to the plaintiff, if he take a bond executed by one surety only, though such surety may have been actually sufficient when taken, § 2. Such bond is, however, binding on the parties. Glezen v. Rood, 2 Met. 490. It was formerly the practice of the officer to keep the bond, until called for, but it is now made his duty to return it and file it with the writ, and of the clerk to note upon the writ, that a bond is so filed, § 4. A bail bond will be invalid, unless it be executed by the principal as well as the sureties. Bean v. Parker, 17 M. R. 591; Bull v. Clark, 2 Met. 587. A mere misdescription of the