¶1The relator was arrested by one Templeton, a deputy sheriff, upon a writ issued as a capias by á justice of the peace, and committed to jail in Washington County, hav*41ing neglected to procure bail. The sheriff who served the writ did not produce the relator upon the return day o-f the writ; nor at the time and place to which the case was continued; but the relator remained in jail from the time of his commitment, .and was confined therein under such commitment at the time the petition was brought. The precept upon which the relator was arrested and confined in jail commanded the officer, for want of goods, etc., to take the body of the defendant, if found, and him safely keep, so that he have him to appear before the authority signing the writ, etc. It was the duty of the officer serving the precept to follow the command therein made to take the defendant’s body, etc., and to have him before the authority signing the writ at the time and place therein named. Taking him, confining him in jail, and not producing him at the time and place stated in the writ, was not a compliance with the order contained in it. The relator should have been produced at the justice trial, and under the agreed statement of facts, he must be discharged, the parties agreeing that if the relator should have been produced at the trial, such shall be the disposition of this case. That is the only question before us, and the only one passed upon.
¶2The relator is discharged.