Houghton v. Wilson

76 Mass. 365

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1858
• Status: Published

Opinion

Dewey, J.

The ruling that if the defendant had no legal . right to make a second arrest of the plaintiff, and commit him to jail, yet if the arrest and commitment were voluntarily submitted to by the plaintiff, then he could not maintain the action, was sufficiently favorable to the defendant. But that defenee failed upon the facts, as was found by the jury.

The case then stood thus: The defendant, as .a constable, had arrested the plaintiff and taken him to jail, and omitted to leave with the jailer any copy of the process by which he had been arrested, and under which he was to be detained a prisoner. Under these circumstances, when the prisoner was permitted to go at large without any commitment, it was an escape from the constable and not from the jailer, although the jailer refused to receive and detain him. In point of fact, he had not received him, and the "escape by being permitted to go at large was an escape from the custody of the constable. It was also a voluntary escape, and being such, the same officer could not again arrest him on the same execution. By making such second arrest he became a wrongdoer, and, having committed him wrongfully, was properly held responsible for the arrest and the detention by virtue thereof.

Exceptions overruled.