Martin v. Collins

43 N.E. 91, 165 Mass. 256, 1896 Mass. LEXIS 231

Opinion

Allen, J.

By Pub. Sts. c. 215, § 28, it was made the official duty of the officer who served the mittimus to leave with the keeper of the prison an attested copy thereof with his return thereon, and this is a sufficient warrant to the keeper for the detention of the party committed. The copy takes the place of a precept addressed to the keeper. It is contended for the plaintiff that the above section of the statute contemplates that a correct copy shall be left. But the keeper may and must assume the attested copy to be correct, unless there is something to show the contrary. An inaccurate copy may be voidable, but if properly attested it will warrant the keeper in detaining the person committed, at least until he knows or has reason to believe that there is an error. In the present case, the plaintiff should have taken steps to have the mistake corrected, or at any rate should have informed the defendant that there was a mistake. But he did neither. The defendant had no reason to think the copy erroneous; and there was no negligence on his part in failing to ascertain the existence of the error. Without going further than the facts of the present case, we think the defendant was justified in assuming that the copy was correct, and that he is not liable to the plaintiff in damages. See Wilmarth v. Burt, 7 Met. 257, 259, 260.

Judgment for the defendant.