Prescott v. Bancroft

42 Mass. 500

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1840
• Status: Published

Opinion

Dewey, J.

The objections taken to the declaration cannot prevail, if sufficient matter is set forth to show a good substantive cause of action. ’ The argument of the defendant seems to be founded upon the hypothesis, that no liability attaches to the officer for not returning a bail bond, until there has been a rendition of judgment against the debtor, an execution issued, and a return thereon of an avoidance by the debtor.

By the Rev. Sts. c. 91, § 4, it is made the duty of the officer, who shall make an arrest and take a bail bond, to return such bond with the writ. Any neglect of the officer, amounting to a breach of official duty, subjects him to an action ; as the law presumes that damages to some extent have been sustained. Laflin v. Willard, 16 Pick. 64. The declaration, in the present case, alleges the neglect of the defendant to return the bail bond with the writ, which of itself was a breach of official duty, and would entitle the plaintiff to maintain an action, and recover damages.

The other objection taken to the declaration is, that it is defective in not averring that the plaintiff, or some person in his behalf, made the proper oath before a justice of the peace, as required-by the Rev. Sts. c. 90, § 111, before the arrest of the body of a defendant in a civil action is authorized.

If this were an action against the officer for neglecting to make an arrest, this objection might perhaps be well taken ; but where the gravamen alleged is, that the officer did in fact make an arrest Tind take a bail bond, but neglected to return the same with the writ, and the declaration avers, that the officer returned on said writ, that he had arrested the body of the defendant and held him to bail, it is unnecessary to allege the taking of the oath required by the statute, as the alleged return of the officer, indorsed on the writ, implies that he was legally authorized to make the arrest. Such a return would be at least prima, facie evidence that the proper authority was given him for that purpose, and if he would defend himself on the ground that the requisite oath was not previously taken by the plaintiff, this is matter of defence to be taken on his part, and to be shown by h"m at the trial, and does not furnish any sufficient objection to die action, upon a motion in arrest of judgment.

Judgment on the verdict.