Majority
p. 433Ray and others against Hogeboom. NEW YORK, October, 1814.
Headnote
Where a sol* dier,privileged from arrest, was taken ia execution by a constable, who suffered him to go at large, ifc was held, that thoughtheconstable was not bound to tike notice of the privilege of the party; yet it was a good defence, in ae*» tion, <01 the escape; as the plains iff¡ having no right to arrest, had suffered no injury or wrong*IN ERROR, on certiorari, from a justice’s court. Hogeboom sued Ray, who was a constable, and the other defendants, who were his sureties, for the escape of one Tracer, on an execution. It appeared that Ray took Tracer on an execution, at the suit of Hogeboom, and delivered him over to another constable to convey to jail; but neglected to deliver over the execution, whereby Tracer was discharged. It was admitted, or proved, that when Tracer was taken, he was a soldier in the army of the United States, and that the execution was under twenty dollars. Hogeboom obtained judgment before the justice for the amount of the execution.
delivered the opinion of the court. The judgment must be reversed. The constable was not bound to notice the fact, that Tracer was protected from arrest; but if he chooses to notice it, or neglects to take a person privileged from, arrest, and can show that he is so privileged, it is a good defence in an action against him. No wrong or injury has feeesa
p. 434
done to Hogeboom. He had no right to arrest the body of Tracer; and having no right to do so, he cannot found any action on the neglect to execute his writ.
Judgment reversed.