Green v. Edson

2 N.H. 293

Opinion

Richardson, C. J.

delivered the opinion of the court.

The statute of the 12th congress of the United States,(1) which statute was made December 12,1812, provides, “that “during-the continuance of the war with Great Britain, no “ non-commissioned officer, musician, private, &c. enlisted “ in the service of the United States, during his continuance “ in service, shall be arrested, or subject to arrest, or to be “ taken in execution for any debt contracted before or after “ enlistment.”

The first question made in this case is whether the special verdict finds with sufficient certainty that Hoffman was at the time of the arrest a soldier in the service of the United States. It is found that on the day when the arrest was made he was “ a private soldier duly enlisted into the army of the United States,” and we have no doubt that it must be intended that he was in the service of the United States at the time of the arrest. For if he were not in service, it is impossible that there could have been any doubt as to the legality of the arrest, and the court below would not have suffered a special verdict to be taken. 2 If Roll. Ab. 696, li, 50.

It is contended on the part of the plaintiff in this case, that although the sheriff was not bound to arrest Hoffman, yet having arrested him, he was bound to commit him. But we are of opinion that the law is not so. If after the arrest, the officer was satisfied that Hoffman was privileged from arrest, he might well let him go at large, but in so doing he took the risk of his being privileged from arrest.— For if the prisoner had turned out not to have been privi-legcd, he would without doubt have been liable for an escape. The case of Ray and others vs. Hogeboom,(l) is an authority directly in point.

(1) 11 John. 433.

Judgment affirmed.