That ⅛« force of arm% is «. g*ood return upon pi’°'
AN Action on the Case was brought against the Defendant, Sheriff of Duplin county, for the following turn made on a writ of capias ad respondendum, which ' was put into his hands at the suit of the Plaintiff against one Beck-. “Not executed. The Sheriff was kept off by force of arms.”
A verdict was found for‘the Defendant, and a motion for a New Trial made on the part of the Plaintiff.
M‘ Millan, for the Defendant.
It has long since been settled, that where the arrest is upon mesne process, and not upon execution, the Sheriff is not bound to take the fosse comitatus, and therefore upon such process it is a good return to return the rescue.* He is not obliged to raise the posse on mesne process, though he may do it.†
Daniel, J.
delivered the Opinion of the Court :
On mesne process the Sheriff may, but is not obliged to raise the posse. It cannot be presumed, that where the party is bailable, the writ will be resisted ; but if it is resisted, and the Sheriff kept off by force of arms, we cannot think he is liable to the Plaintiff;!because he had not ' , , , , , the posse comitatus, at his back‡
New Trial refused.