Leighton v. Hall

Hr. Chief Justice CatoN delivered the opinion of the Court. After a careful consideration and examination of this subject, we have arrived at the conclusion that this decree against the sheriff cannot be sustained, for the reason that he was not authorized to.arrest Hall, on the order, with a copy of which he was furnished. The twenty-sixth section of the fifth article of the constitution declares, that “All process, writs and other proceedings, shall run in the name of 1 The People of the State of Illinois.’ ” No such writ or other such process was issued to the sheriff, commanding him to arrest Hall. He was simply furnished with a copy of an order of the court, adjudging that Hall should pay one hundred dollars to the sheriff to whose hands a copy of the order should come, or, in default thereof, the sheriff should arrest and detain him in custody. The sheriff served the copy of the order on Hall, who did not pay the money, and the sheriff so returned ; but he did not arrest Hall as the order directed. Afterwards, an attachment issued in regular form, which did run in the name of the People of the State of Illinois, commanding the sheriff to arrest Hall, which was returned non est; and the question is, was it his duty to arrest Hall upon the mere copy of the order with which he was first furnished? We think that order did not clothe the sheriff with sufficient authority to make the arrest. It was neither a writ, nor a process. It did not run in the name of the People. It was simply an order on which such process might have issued. We have a statute which authorizes conservators of the peace to arrest for criminal offenses committed in their presence, and if they make arrests under other circumstances, they do it at their peril, and must take the responsibility of showing that the prisoner has been guilty of a crime. Executive officers of a court, may, upon a mere order of the court, detain persons who are in the presence of the court, or' who are already in custody; but it does not follow that such an order may be sent into the country, without process, which will authorize an arrest. But this first order was not in a criminal proceeding. Until it was disobeyed by Hall, it did not furnish grounds even for a criminal proceeding. It was purely civil in all its features, and the sheriff should have been furnished with such authority as the constitution requires, before he could be required to make the arrest. The decretal order against the sheriff must be reversed. Decree reversed.