Simmons v. Richards

• Decision Date: 20 May 1898
• Citation: 50 N.E. 617,171 Mass. 281
• Parties: SIMMONS v. RICHARDS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

171 Mass. 281

50 N.E. 617

SIMMONS v. RICHARDS.

Supreme Judicial Court of Massachusetts, Plymouth.

May 20, 1898

COUNSEL

Hosea

Kingman and D.E. Damon, for plaintiff.

Marcellus Coggan and E.S. Page, for defendant.

OPINION

ALLEN J.

An arrest may be made without actually touching the person. It is enough if the party is within the power of the officer and submits to the arrest. Mowry v. Chase, 100 Mass 79, 85. The evidence in the present case was sufficient to warrant the finding of an arrest on June 14th. There was testimony that the defendant went to Underwood's house in the evening, said he had an execution for his arrest, showed it to him, asked him what he was going to do, said he would have to take him to jail, told him that he had an assistant in attendance whom he could leave with him that night; that the defendant, with his assistant, went with Underwood, by the latter's request to Station No. 2, where Underwood, in defendant's presence, told the sergeant, and afterwards the chief of police, that he was under arrest, which was not contradicted by the defendant; and, finally, that the defendant let him go upon assurances that he would come to defendant's office the next morning. Without detailing further testimony, the jury might find from the above that the defendant intended to take Underwood into his custody, and had him within his power; that Underwood submitted to the arrest; and that the defendant voluntarily discharged him. If that was so done, the defendant had no authority to arrest Underwood again on the same execution, and the arrest on June 27th was illegal. This is conceded by the defendant. Houghton v. Wilson, 10 Gray, 365. If the second arrest was illegal, the recognizance would be invalid, provided the facts showing the illegality appeared of record; and in such case the surety upon the recognizance might have maintained his defense, when sued upon it. Smith v. Bean, 130 Mass. 298. But no facts appear of record showing that the second arrest was illegal. The officer's return upon the execution set forth only the arrest of June 27th. Assuming that there had been an arrest on June 14th, this was a false return. This also is conceded by the defendant. Brinley v. Allen, 3 Mass. 561; Bean v. Parker, 17 Mass. 591, 601.

Nevertheless the defendant contends that he is not liable to the plaintiff, though he might have been to the judgment creditor or to Underwood. The situation was thus: The defendant took Underwood before the district court by virtue of an execution upon which he returned an arrest. So far as the papers showed, everything was in due form, and the arrest was legal. Thereupon Underwood entered into the recognizance, with the present plaintiff as surety. Moreover, if it is material, there was evidence tending to show that the present plaintiff was not then aware of the prior arrest. Under this state of things, when suit was brought on the recognizance after Underwood had made default thereon, neither Underwood nor the present plaintiff, in defense, could be allowed to contradict the defendant's return of an arrest on June 27th. As to parties and privies, the return was conclusive. Lowery v. Caldwell, 139...