#### William Brown *versus*William Getchell and Another.

A debtor taken m execution procures his discharge from the arrest by giving security to the officer: afterwards, and before the return day of the execution, the officer again arrests him, and commits him to prison, making return on the execution that he had so done. The debtor gives bond, with surety, for the liberty of the yard; and in an action on such bond, it was holden good against principal and surety.

One attending court, as a party to a process then pending, may avail himself of the protection which the law affords in that case to prevent or defeat an arrest; but if he submits, he cannot afterwards object to the imprisonment as for that reason unlawful.

Debt on bond, conditioned that the said *W. G.,*then a prisoner in the jail at *Augusta,*in the county of *Kennebeck,*at the suit of the plaintiff, should continue a true prisoner, &c.

The defendants, in their plea in bar, set forth the judgment recovered by the plaintiff against the said *William,*and the execution issued thereon, the delivery thereof to one *J. F. Norris,*a deputy of the sheriff of the county of *Kennebeck,*and an arrest of the said *William*thereon on the 13th of June, 1810; and then allege the making of a promissory note for the amount of the said judgment, by the said *William,*to one *J. G.,*Jun., and by him endorsed, payable September 20th, 1810, which note, with *Norris’s*consent, was delivered to one *T. A. Hill,*to be by him kept for the benefit of *Norris,*until the said 20th of September; and if the amount due on said execution should not then be otherwise satisfied, the said note was to be delivered to *Norris;*in consideration whereof, the said *Norris*permitted the said *William*to go at large; [ * 12 ] and afterwards, on the first * Tuesday of October, 1810, while the said *William*was attending at the S. J. Court, then sitting at *Augusta,*as a party to a suit then and there pending, the said *Norris,*by virtue of the said execution, arrested the said *19*William,*and committed him to the jail in *Augusta;*making a return on the execution that he had arrested the body of, &c., and him committed to the commonwealth’s jail in *Augusta*Whereupon the defendants, in order to procure the liberty and freedom of the said *William*from the said arrest and confinement, and that he might have the ease and favor of his liberty from the said arrest and restraint, made and executed the said bond, and for no other cause; and they aver that the commitment, &c., and the bond before mentioned, are the same mentioned and described in the plaintiff’s declaration. All which, &c., wherefore, &c.

To this plea the plaintiff demurs specially, assigning the following causes of demurrer: —

1. That the defendants have not shown that they have performed the condition of the bond, nor that the same is void, nor that it was obtained by duress, nor that it is otherwise voidable.

2. That the said plea is double, and inconsistent in this respect, *piz.:*The defendants have set forth that the said writ of execution was unlawfully enforced, and the said *William*unlawfully arrested and imprisoned; but have nevertheless shown that the said execution, according to the return of the officer thereon, was duly enforced, according to the command therein contained, before the return day thereof.

3. That the defendants have not alleged, in their plea, that the supposed arrest on the 13th of June, and the subsequent discharge of the said *William,*therefrom, were made with the consent or knowledge of the plaintiff.

*Sullivan*for the plaintiff.

*Whitman,*for the defandants.

The note of hand given to the officer was a satisfaction of the execution. The officer, by that transaction, made himself responsible for the debt; * and at any rate, having once arrested the debtor upon [ * 13 ] the execution, and voluntarily discharged him, the execution was no authority to him to make a second arrest. The imprisonment was then unlawful; and the bond given, to procure a release from that imprisonment, was void, as given by duress of the principal; and being void as respects the principal, is also void as respects the surety.

The opinion of the Court was delivered by

Sewall, C. J.

The return of the sheriff is not conclusive against the party arrested; and there is no inconsistency in his showing the return of an arrest, which he alleges to be unlawful.

The plea is, however, liable, in point af form, to other sufficient objections, if these had been pointed out. It is double and argumentative, in a degree to rendre a replication to it, for the purpose *20of putting in issue any one material allegation, almost impracticable ; and although several defences are intimated, it is by no means clear to which,' of two at least, the defendants have directed their averments, or what conclusion in particular is intended on their parts to be drawn against the action. It seems, like a defence against a bond, unlawful, because taken for ease and favor ; but in the argument the counsel for the defendants explain the plea to be that the bond was unlawfully obtained by duress of imprisonment of *William Getchell,*the principal in the bond.

We have examined the plea in this view of it. There is no substantial averment that the principal in this bond made it against his will, or to relieve himself from any compulsory imprisonment. If any thing like duress is to be inferred from the long story told in this plea, it must be because an unlawful arrest and imprisonment, such as would be injurious and amount to duress, even when consented and willingly submitted to on his part, are sufficiently set forth and averred. But if any thing like duress is averred, it is not alleged that either of the defendants had been thereby compelled to make the bond for his relief from imprisonment.

We cannot make this inference from the circumstance averred, that the principal in the bond was arrested when attend [ * 14 ] ing * court, as a party in a process then pending. For the protection which the law affords in that case is a. personal privilege, of which the party entitled to rely upon it may avail himself to prevent or defeat an arrest; but if he waives the privilege, and willingly submits himself in custody to the officer, he cannot afterwards object to the imprisonment as unlawful, or as made by a void authority. A waiver and voluntary submission are to be presumed ; at least there are no allegations to the contrary in the bar on which the defendants rely.

It is, however, sufficiently averred, — and the averments are confessed by the demurrer, — that *William Getchell, the principal in the bond, had been arrested on the plaintiff's execution in June,*1810, *and discharged by the officer upon an unlawful and void contract between him and the party arrested; and that the arrest in October afterwards, when W. G. was attending court, was a second arrest upon the same writ, enforced by the same officer, who had before voluntarily suffered his prisoner in execution to go at large.*

It is very clear that the escape of *W. G.*from the first arrest rendered the sheriff liable for the amount due on the execution; and this would have been the consequence of the escape if it had happened by the negligence of the officer, instead of being voluntarily permitted by him. There is, however, this difference, in the consequent liabilities of the officer, between the case of a negligent, *21and the case of a voluntary, escape. When happening against the will of the officer, or without his consent, he may pursue his prisoner ; and if he should be retaken, or if he should voluntarily return into the custody of the officer, before judgment rendered for the creditor in the execution, in any action which he may bring for such negligent escape, the prisoner would be again lawfully in custody, and the sheriff would be excused.

By a statute provision of our legislature on this subject, (1) the liability of the sheriff, prison-keeper, or jailer, chargeable with an escape, seems not to be absolute until the expiration * of the term of three months after the escape. For if [ * 15 ] within that time the prisoner shall be recovered and returned back to prison again, the sheriff is liable to nothing further than the cost of any action which may have been commenced for the escape. Considering this provision as applicable only to the case of negligent escapes, and the case of voluntary escapes to remain as at common law, that is, a charge upon the sheriff, and a misconduct not to be excused by the recovery of the prisoner, still the rights of the creditor remain unimpaired, when the going at large of the prisoner has not been by the consent of the creditor. And although the sheriff, in the case of a voluntary escape, cannot enforce the same writ to effect by retaking the prisoner against his will, yet the creditor may lawfully enforce his demand; and it is competent for him to procure a second arrest of the party, who had been before arrested or imprisoned, notwithstanding the escape voluntarily permitted by the jailer, (a) If the debtor taken on a *copias ad satisfaciendum,*escape, yet, if the writ be never returned and filed, the creditor may have a new writ of *copias ad, satisfaciendum*and take him again, and he shall not take advantage of his own wrong; (2) and when the escape of a prisoner has been of his own wrong, if he is retaken, he shall not have an *audita querela*against the sheriff; and although, where the escape has been voluntary, and with the consent of the jailer, if the prisoner, should be retaken, he may have his *audita querela*for his discharge; and perhaps might have against the officer an action of false imprisonment, as upon an unlawful service of a lawful writ, when the same officer enforces the writ a second time after permitting an escape ; yet there seems to be no reason to conclude that the writ is void in law, and that a submission to it by the debtor, or his voluntary return into the custody of the same officer, is to be considered as *22an unlawful imprisonment, and in the nature of a duress to avoid a bond otherwise lawful, which is given and made to the creditor, and not to the officer, (a)

The creditor retained his demand and remedy, notwithstand ing the unlawful combination or bargain of his debtor, [ * 16 ] *made with the officer, when first arrested on the execution. There is no discharge of record, or service returned, which can defeat this execution. The return upon it is not void or illegal upon the face of it. And the defendants have not averred that the principal in the bond had been compelled by duress to enter into this bond. Nor is a compulsion of that kind to be inferred from the averments of their plea. Any bond to the officer, under the circumstances alleged, might have been unlawful; but the debtor in execution submitted himself to a remedy which the creditor was lawfully entitled to, notwithstanding the misconduct of the officer; and we are- of the opinion that the defendants cannot for this cause avoid their bond to the plaintiff. (b)

*Defendants’ plea adjudged lad.*

(1)

*Stat.*1784, c. 41, § 4.

(a)

*Appleby*vs. *Clark,*10 *Mass. Rep.*59.— *Commonwealth*vs. *Drew,*4 *Mass. Rep*391. — 1 *Selw.*N. *P.*8th ed. 620.

(2)

 3 *Co.*44 52.

(a)

**It would seem that the writ was so far *functus officio*that a second arrest upon the same writ, by the same officer, as in this case, was illegal, and the imprisonment could not be justified by the process. — *Atkinson*vs. Jameson, 5 *D. & E.*25.— *Sheriff of Essex’*case, *Hob.*202. — *Buxton*vs. Home, 1 *Show.*174. — *Featherstonehaugh vs.*Atkinson, Barnes, 373.— *Vin. Abr Esc.*93, pi. 7. — *Alanson*vs. Butler, 1 *Lev.*211.— 1 *Sid.*330.— Carter, *212.—Ravencroft*vs. Eyles, 2 *Wils.*295. — 1 *Arch. Frac. Com.*pi. 269. — *Lansing*vs. Fleet, 2 *Johns. Cas.*2. — *Thomson*vs. Lockwood, 15 *Johns.*256. — But if the debtor voluntarily return, after a voluntary escape from the sheriff, the creditor, by signifying his election, may detain him upon the same execution. — *Benson,*J., in *Lansing*vs. *Fleet, ubi sup.*— 1 *Danv. Ab.*633. — *Trevilian*vs. Roberts, 1 Rolle, *Ab.*307, pi. 4, 902, pi. 8.— A bond given to the sheriff for the jail liberties after a voluntary escape, and a second arrest upon an execution, is void. — *Thomson*vs. Lockwood, *ubi sup.*

(b)

*Clap*vs. Cofran, 7 *Mass. Rep.*98. — *Freeman*vs. Davis, 7 *Mass. Rep.*200 — *Burroughs*vs. Lowder, P. *Mass.*373. — *Smith*vs. *Stockbridge,*9 *Mass. Rep.*271.