The House of Lords Cases on Appeals and Writs of Error, Claims of Peerage, and Divorces, During the Sessions 1847[-1866] Volume 6 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1859 Excerpt: ...appear to have been of opinion that the general rule obtains, unless the first arrest is rendered illegal by some misconduct or wrongful act of the sheriff himself. In Barratt v. Price (d) which it is said introduced the distinction, the Defendant was ordered to be discharged from a detainer, on the ground that the arrest, which was made in another action, was fraudulent on the part of the sheriff's officer. Lord Chief Justice Tindal, in giving the judgment of the Court in that case, observes, after stating the general rule, that " a detainer will hold good though the Court may, upon collateral grounds, unconnected with the act of the sheriff, order the party to be discharged from the first arrest; but where the sheriff has by his own act illegally arrested the Defendant, the Defendant is not in custody under the first writ." In all these cases it seems to have been considered necessary, in order to take a case out of the general ride, (5) 1 Q. B. Rep. 529. (d) 9 Bing. 500. (c) 5 Mee. & Wels. 152. that there must have been some misconduct on the part of the sheriff which rendered the first arrest illegal on that ground. The first arrest being illegal by reason of some defect collateral to the act of the sheriff himself, will not prevent the operation of the general rule. If that be so, how stands the present case? Was the arrest under Arambura'a writ illegal by some collusion, fraud, or misconduct of the sheriff himself, or of his officer, which is the same thing? The illegality was by reason of the omission of the signature of the signer of writs, with which breach of regularity the sheriff had nothing to do; but it may be, that if he knew of the defect, but nevertheless thought fit to act upon process which he knew to be bad, the arrest woul...