Page:Federal Reporter, 1st Series, Volume 10.djvu/382

 370 FEDERAL EBPOBTBR. . �The defendant at once submitted to the authority of the deputy mar- shal, who told him that he might depart from eustody if he would promise to attend the commissioner's court on a certain designated day. The defendant agreed to the proposition and went off, and did raot afterwards appear at the time and place designated. �I am of opinion that this was not such a service of the warrant as entitled the marshal to the fee charged. The service of a commis- fjioner's warrant in a criminal case consists of more than a mere arrest, as the marshal must keep the defendant in eustody until he is carried before an examining magistrate for a preliminary hearing upon the charges in the warrant. Where an arrest is made on a commissioner's warrant, the officer making the arrest bas no authority in law to take bail, and if he voluntarily allows the defendant to depart from eustody before the case bas been heard by the magis- trate, it is a voluntary escape. The liability of the officer is abso- lute, and cannot be relieved by a subsequent arrest of the defendant ; but the warrant is not inyalidated, and the defendant may be retaken Tjnder the same warrant, and by the same officer. The misconduct of the officer does not prevent an arrest, as the public good iequires that the defendant should be brought to justice. 1 Chit. Crim. Law, 61. �The rule of law is somewhat different in mesne proeess in civil cases, as the officer becomes special bail if he allows a defendant to depart out of eustody without giving a bail-bond. Upon final proeess of execution if there is a voluntary escape the liability of the officer is absolute. If there is a negligent escape the officer may retake the prisoner on fresh pursuit and hold him, so as to relieve his liability. Adams y. Turrentine, 8 Ired. 147. ' �The action of the deputy marshal in this case, and the submission of the defendant to the coiitrol of the officer, constituted a valid arrest. Whether acts constitute an arrest depends upon the intent of the 'pattiesat the time. An arrest may be made without touehing'the person of the defendant at the time, if he voluntarily submits tb the proeess of the law in the hands of the officer. Jones v. Johesj 13 Ired. 4re8. ,, . , �; Although there was a valid arrest in this case there was; not a due ■service of proeess, and the marshal is not entitled to the fee charged. In his answer the marshal insists that the defendant was retaken on the warrant on a subsequent day and carried before the ppnamis- sioner for a preliminary hearing. The evidence shows that- the de- fendant, previous to the second arrest, and while he was still lurking in the woods and evading the officer, had an appearance-bond, with ��� �