
    Charles R. Doane vs. William P. Baker.
    An officer who has suffered a voluntary escape of a debtor whom he has arrested on ex ecu tian cannot arrest him again upon the same execution; and the magistrate before whom the debtor is brought upon the second arrest has no jurisdiction to determine upon the right of the officer to make it.
    The admission of evidence, which may have been incompetent, to prove facts which were proved by other evidence, furnishes no ground for a new trial.
    Tort against a deputy sheriff for a false imprisonment.
    At the trial in the superior court, before Allen, C. J., it ap peared that the defendant, by virtue of an execution committed to him, arrested the plaintiff on the 13th of November 1860, and took him before a commissioner of insolvency, who issued a notice of the plaintiff’s desire to take the oath for the relief of poor debtors, which was duly served, and in pursuance thereof the plaintiff and the creditor appeared, and the case was continued, and by consent of the creditor’s attorney and of the defendant the plaintiff was permitted to go upon the verbal promise of his attorney, John M. Way, that he should appear at the subsequent hearings, and the examination was postponed from time to time until the 4th of December, when, there being no appearance for the creditor, the commissioner informed the plaintiff that he should discharge him if there had been no agreement for á further continuance, and, upon Way’s stating that there had been no such agreement, said to the plaintiff, “ You are discharged.” The plaintiff thereupon left, and attended to his business as usual, without interference from Way or the defendant, until the 1st of February 1861, when the defendant, by direction of the creditor’s attorney, arrested the plaintiff on the same execution, against the plaintiff’s objection, and took him before a commissioner, who decided to proceed, and on that and subsequent days the plaintiff was examined, unde? a written protest on his part, until the 6th of February, when for his refusal to sign his name at the bottom of every page of his examination, the commissioner issued a mittimus to commit him for contempt, and annexed to the execution a certificate refusing the oath. The defendant, by virtue of the mittimus and execution, thereupon committed the plaintiff to jail.
    The plaintiff also was allowed, under objection, to introduce in evidence the record of the commissioner, showing minutes of the same proceedings before him which appeared by the other evidence.
    The defendant requested the court to instruct the jury that the decision of the commissioner to go on with the examination in February was an adjudication that the plaintiff was not discharged by him or by the officer; and that, inasmuch as the commissioner was not satisfied with the examination, it was his right and duty to send the plaintiff to jail, and it was the duty of the officer to commit him on the execution. The judge refused so to rule, and instructed the jury that if they should be satisfied that the plaintiff was voluntarily permitted by the defendant and the execution creditor to go at large, especially from the 4th of December to the 1st of February, the defendant had no legal right to arrest him again on the latter day, against his objection, on the execution; and that, in such case, he had no legal right to commit him to jail on the 6th of February, against his protestations.
    The jury returned a verdict for the plaintiff, with $500 damages ; and the defendant alleged exceptions.
    
      S. J. Thomas & E. Pearson, for the defendant,
    cited Butler v. Washburn, 5 Fost. (N. H.) 251, 258; Langdon v. Chittington, 2 Root, 133, 135; Foster v. Collamer, 10 Verm. 469; Brown v. Getchell, 11 Mass. 11; Stevens v. Jackson, 6 Taunt. 106; Dalton on Sheriffs, 139.
    
      J. S. Abbott, for the plaintiff,
    cited Doane v. Bartlett, 4 Allen, 74; Little v. Newburyport Bank, 14 Mass. 447; Appleby v. Clark, 10 Mass. 59; Commonwealth v. Drew, 4 Mass. 395.
   Bigelow, C. J.

The jury have found that a voluntary escape was committed by the debtor, the present plaintiff, prior to the first day of February 1861. This finding was under instructions to which no exceptions were taken, and upon facts stated in the exceptions which fully justified it. After such escape, the debtor could not be again lawfully arrested on the same execution. Doane v. Bartlett, 4 Allen, 74. The commissioner of insolvency had no authority or jurisdiction to determine whether such an escape had taken place. He had no power to do aught except to be present at the examination of the debtor, to see that it was properly conducted, to enforce all his own lawful orders necessary to the proper and full completion of such examination, and to adjudicate on the right of the debtor to take the oath prescribed by law. The lawfulness of the debtor’s arrest on the execution was not within bis cognizance.

The minutes of the commissioner admitted in evidence appear to us to have been immaterial to the issue before the jury, and to have worked no prejudice to the defendant.

Exceptions overruled.  