Page:Federal Reporter, 1st Series, Volume 10.djvu/386

374 PEDERAIi REPORTER. �marshal that if he would meet him at his house on the seventeenth day of July, an arrangement could be made for the surrender of the defendant and three other co-defendants. The deputy went to the place at the time designated, but a satisfactory arrangement was net made. The deputy, on his return, passed by a place where a number of men had met to have "a shooting-match." The defendant was there, and the deputy remained some time -with him, but did not make an arrest, as he did not have the warrant in his possession. On several subsequent days the deputy made active efforts to arrest the defendant, but did not suoceed until the day of the first arrest mentioned in considering the first exception. �The marshal is entitled to the expenses charged for the days his deputy endeavored to make an arrest previous to the seventeenth of July. I disallo-w the expenses for the subsequent days. When a warrant of arrest is put in the hands of an officer it is his duty, as Boon as he conveniently can, to proeeed with secrecy and diligence to apprehend the defendant. He must always be ready to perform the mandate of the warrant. In this instance I am disposed to hold the officer to the highest and strictest rule of duty, for when he sub- sequently made an arrest he voluntarily allowed the defendant to depart from custody on a promise to appear before the commis- sioner for trial on a future day. He had no right to show favor or trust to the promise of a criminal who had so long been evading the process of law. At the common law it was allowable for a constable, when he had made an arrest without a warrant in a case of a petty nature, to take the defendant's word for an appearance before a mag- istrate if he was of good repute and there was no probability of his absconding, (1 Chit. Crim. Law, 59;) but such indulgence was not allowable in this case. �As to the third exception, the evidence shows that the defendant had given bond to appear before the commissioner on the twentieth day of August, and we have above decided that such bond was valid. While under bond, and before the case was heard, there was no necessity for guarding him, as he was in the constructive custody of the court, and his sureties were his keepers. The defendant gave a new bond for his appearance on the twenty-seventh day of August, and the custody in which he was placed by the verbal order of the magistrate was unlawful. �The law fixes no time and place for the session of a commissioner's court, and the marshal and his deputies are notrequired to be present at such court, except where they have process to return and defend- ��� �