Buzzell v. Emerton

Barker, J. 1. The evidence tended to show that the plaintiff upon his arrest was, at his own request, taken to the office of a lawyer with whom he consulted, and then to the residence of one magistrate for the purpose of giving bail, and to the residence of another, where he did give bail, and that he paid for drafting the bail bond and for half of the carriage hire; and also that when the writ on which he had been arrested was entered he appeared, filed an answer making no objection to the service, placed the case upon the trial list, and consented to dispose of it by an entry of “ Neither party,” with the intention, as the defendant contends, of making an amendment of the writ impossible. None of these things would justify a finding that the plaintiff waived the illegal arrest, or had estopped himself from maintaining his action for damages. They tended in no way to mislead or prejudice the defendant. The giving of the bail bond was not a waiver of the illegal arrest. Carleton v. Akron Sewer Pipe Co. 129 Mass. 40, 43. Lane v. Holman, 145 Mass. 221. The visits to the office of the lawyer and to the houses of the magistrates were after the arrest, and were incidents of the attempt to procure bail. They were not consented to by the defendant upon any suggestion or understanding that he should release the plaintiff, and the plaintiff was not released, but gave [180] bail. The court to which the writ was returnable could not by a subsequent amendment give validity to the arrest; Learnard v. Bailey, 111 Mass. 160; nor could the plaintiff’s acts in entering a general appearance curtail the power of the court to allow an amendment. The instructions requested by the defendant were therefore properly refused. 2. As the writ contained no copias, the arrest was illegal, and the court properly so instructed the jury. The defendant was a trespasser in making the arrest, and the plaintiff was entitled to recover damages. See Learnard v. Bailey, ubi supra. 3. The bill of exceptions does not show that the defendant asked for instructions as to the elements or measure of the damages which the plaintiff might recover; nor that any instruction upon that subject was given, except the general one that the plaintiff was “ entitled to recover damages which he sustained in consequence of what the defendant wrongfully did.” There was no error in law in this instruction. If, as the defendant now contends, the plaintiff could not recover damages for what occurred between the time when he agreed to procure bail and his actual disci large, it is not open for the defendant to complain that no specific instruction upon the point was given. Exceptions overruled.