case ex part vuhitchurch June the d the petitioner be arrest on a Sunday by  Lord chancellor tipstaff under a warrant of the court for a contempt in  disobey a order he now pray to be discharge insist his arrest and commitment  to the fleet be illegal be contrary to the statute of the car c S Lord  chancellor doubIful at first but on consideration think it a lawful arrest  though on a Sunday Hancock and Hooper the assignee of holiday a bankrupt  obtain a order for a master to take a account of the deal between Whitchurch  and the bankrupt atkins who report pound S Od to be due from he to the  bankrupt and on argue exception to that report Lord chancellor settle the sum  at pound only which Whitchurch be order to pay to Hallidays assignee  Whitchurch not pay the money pursuant to the order on the that of June his  lordship grant the follow warrant for apprehend he and carry he to the fleet  in the matter of Edward holiday a bankrupt whereas by a order date the that  day of November make in this matter upon the petition of Jonathan Hancock and  Richard Hooper assignee of Edward holiday the bankrupt it be order that  William Whitchurch shall stand commit to the prison of the fleet for his  contempt in the say order mention and that a warrant for such his commitment  shall issue accord these be therefore in pursuance of the say order to will  and require you forthwith upon receipt hereof to make diligent search after  the body of the say William Whitchurch and wherever you shall find he to  arrest and apprehend he and to carry he to the prison of the fleet there to  remain till further order Willing and require all mayor sheriff justice of the  peace constable headborough and all other his majesty officer and love subject  to be aid and assist to you in the due execution of the premise as they tender  his majesty service and will answer the contrary hereof at their peril and  this shall e to you or any of you that shall so do the same a sufficient  warrant date this that day of June Hardwicke c to John eyles Esq warden of the  fleet or his deputy attend the high court of chancery by virtue of this  warrant Whitchurch be on Sunday the that of October last between and in the  afternoon arrest at froome in somersetshire by James adlam his lordship  tipstaff by the order and direction and in the presence of Mr Stephen Skurray  solicitor for the assignee of holiday and by they detain at Fr Monday morning  and then convey by adlam to the fleet prison where he still be charge with  that warrant only the petitioner insist that be arrest on a Sunday by virtue  of a warrant atkins er p find on his lordship order for nonpayment of money  only and not for treason felony or breach of the peace it be contrary to the  statute of the that of Charles the second ch entitle a Act for the better  observation of the lord day common call Sunday see provide also that no person  or person upon the lord day shall serve or execute or cause to be serve and  execute any writ process warrant order judgement or decree except in case of  treason felony or breach of the peace but that the service of every such writ  process warrant order judge atkins mean or decree shall be void to all intent  and purpose whatsoever and therefore the arrest be illegal insist that he be  illegal detain in custody and ought to be discharge against the petition be  readthe affidavit of James adlam who swear that on the that of October last be  Sunday in the evening Whitchurch dame into the yard of the George inn in  froome where adlam be and be thereupon tell Whitchurch lie have my Lord  chancellor warrant against he to which Whitchurch immediate answer he know it  and he hear he be there and come on purpose to be take up and that he several  time after both the same night and the next day declare the same Adlams  affidavit be confirm by two other to the same effect he likewise say he have  often be tell and always apprehend these warrant for contempt may be execute  on a Sunday and he have himself do it several time and be never complain of  before on that account and it be agree on all hand that a commission of  rebellion may be execute on a Sunday though it issue for want of a appearance  or a answer only and it do not appear to the officer by the warrant for what  the commitment issue as may be see by the copy of the warrant Mr attorney  general against the petition citedo Mod Carth u and the same case in salk  Parker v sir William more Lord chancellor it appear from the affidavit that  there be not any occasion for the court to make any stretch in the petitioner  favour and he be beside endeavour to defraud the creditor of holiday by  abscond when this petition come on before I be a good deal doubIful and rather  incline to think it be a case within the statute of the that of Charles the  second but upon look into the matter since I have in a good measure alter my  mind and think it a lawful arrest though on a Sunday but I will observe first  as to the voluntary surrender of the petitioner to adlam my tipstaff the  strength of the evidence go to his voluntary surrender for the fact be  positive swear to by three person and deny by Whitchurchs affidavit only and  there can be no doubt but a man may if he please surrender himself voluntary  to my warrant on a Sunday the order of commitment which have be make in this  cause be very different from process that issue to sheriff c for it be that  the party shall stand commit and be different too from most of the order in  other court if this man have be present in court when the order be pronounce  lie be instant a prisoner and the warden may have take he away to gaol direct  atkins the book of practice though I do not say they be of authority yet all  agree in lie it down that the party be consider as a prisoner from the time of  the order pronounce this be a warrant direct to the very gaoler to take he and  carry he to prison rind differ from warrant of other court which be direct to  sheriff and other ministerial officer and not direct to the gaoler and I do  not know that this be do in any instance but where the party be consider as  the prisoner of the gaoler from the time of the order pronounce Escapewarrants  be in aid of the gaoler and command all officer constable c to assist he and  this very warrant be draw up in the same manner and therefore alike in this  respect and escapewarrants may be put in execution on a Sunday in the case of  sir Cecil and other of the town of Nottingham case in king William time the  question be whether serve a attachment upon a Sunday for a contempt be within  the statute against sabbathbreaking say Lord chief justice holt suppose it be  a warrant to take for forgery perjury c shall they not be serve on a Sunday  and shall not any process at the king atkins er p suit be serve on Sunday sure  the lord day ought not to be a sanctuary for malefactor and this case partake  of the nature of process upon a indictment so that Lord chief justice holt be  incline to think that a man may be take upon a process of contempt on Sunday  because it be in the nature of a breach of the peace and a exception out of  the act of parliament if a man may be take on a attachment for nonperformance  of a award upon a Sunday in king v Myers durn Easts Rep the case here cite of  a attach mean for nonperformance of a award upon a Sunday be say to have be  overrule by subsequent case as be hold by the court of common plea in a case  cite by the attorney general why be not a contempt for nonperformance of a  order of this court equal a breach of the peace as the nonperformance of a  award therefore as it seem to be warrant by the word of the warrant itself  that he be a prisoner from the time of the order pronounce I will not  discharge he especial as he be not without remedy for he may bring a habeas  corpus or a action of false imprisonment and therefore order that the petition  for his discharge be dismiss