Williams v. Shillaber

Mortoh, J. It is plain that the arrest in this case was illegal. The citation to the plaintiff was issued before the affidavit had been made which was required by the statute. Atwood v. Wheeler, 149 Mass. 96. The fact that it was customary to issue citations before the affidavit was made, and that this custom was known to the plaintiff, did not make the arrest legal. This custom was an illegal one, and the express provision of the statute could not be thus avoided. While the plaintiff knew of the custom, and might have had no reason to doubt that it had been followed in his case, there is nothing to show that he had actual knowledge that the citation had been issued before the affidavit was made; and it cannot be held, therefore, as matter of law, that his appearance before the magistrate constituted a waiver on his part of the right to object that the citation had been issued before the affidavit was made, or to claim that his arrest was unlawful. Carleton v. Akron Sewer Pipe Co. 129 Mass. 40, 43. The agreed facts find that he appeared before a magistrate authorized to act in such cases, and in the power of the officer holding the execution, and being technically in custody, recognized with sureties to appear and submit to examination. There was, therefore, an arrest. So far as relates to the subsequent proceedings, however, the case stands on different ground. The arrest being illegal, the plaintiff was under no obligation to attend and submit himself to examination, or to yield to the precept from the magistrate purporting to require his commitment. Whatever he did in submitting to an examination, and to imprisonment, must be held to have been voluntarily done, and with knowledge that he could not lawfully be compelled to undergo the examination or the imprisonment. Allen v. Shed, 10 Cush. 375. Lane v. Holman, 145 Mass. 221. Bieten v. Burridge, 3 Camp. 139. He could have procured his discharge by proper methods if he had chosen to employ them, and neither he nor his sureties could have been held on the recognizance. Smith v. Bean, 130 Mass. 298. Newmarket National Bank v. Cram, 131 Mass. 204. Lane v. Holman, 145 Mass. 221. The parties have agreed that, if the arrest was illegal, judgment was to be entered for the plaintiff for one dollar. The Superior Court so found, and ordered judgment for the plaintiff for one dollar, and we think the entry must be, Judgment affirmed.