Page:Federal Reporter, 1st Series, Volume 6.djvu/682

 670 FEDERAL REPORTER. �full right of action preserved to him, subject only to the usual penalty of costs if he failed to make his objection good. �The question whether the defendant Viall, the jailer, is lia- ble to this action is the most dif&cult of ail. An officer is protected by his precept. We consider the only exceptions to be when he himself had done some act under his warrant which renders the future arrest illegal, and when he knows with certainty that certain facts, though not done by him, have occurred since the warrant was issued which will have a like effect. Nothing which goes to prove that the writ ought not to haye been issued shall affect him. In this case the jailer knew that the plaintiff was entitled to be discharged, and he discharged him accordingly; but in our opinion he was not bound to know that the alias execution was issued wrongly and improvidently. We can inquire, but he could not, whether the writ was taken out ministerially, as usual, or whether it was granted upon some special finding by the court; for it might happen that an execution should be so issued, though it is not usual. We hold, therefore, that the jailer was not bound to inquire into the mode in which a writ, regular upon its face, was obtained, and is justified in obeying it, although, as the facts now appear, he would alao havc been justified in disregarding it. �As to the damages. Here, again, the case much resembles Barker v. Braham, 3 Wils. 368, where the chief justice told the jury that there was no evidence of any conspiracy to op- press, but a mere mistake of the attorney, and that it was in some measure the plaintiff's own fault that she was detained in prison for eight months, for she might have obtained her release by application to the court or to a judge in chambers within a day or two after she was arrested. This case, also, is very much more favorable to the defendants, because the plaintiff here was liable to be arrested, and the only slip was in not obtaining the writ a few hours sooner; and he not only remained in prison, but he required the defendant Steere to support him there. This act of his is relied upon as a waiver of the illegality; but it is plain that ail parties were aeting ��� �