Every man has the right to the enjoyment of his liberty and the use of his property, except so far as restrained by law; and whoever unlawfully interferes with the enjoyment of the one, or the use of the other, is a trespasser. A man who seizes the property or arrests the person of another by legal process, or other equivalent authority conferred upon him by law, can only justify himself by a strict compliance with the requirements of such process or authority. If he fails to execute or return the process as thereby required, he may not perhaps in the strictest sense be said to become a trespasser ah initia ; but he is often called such, for his whole justification fails, and he stands as if he had never had any authority to take the property, and therefore appears to have been a trespasser from the beginning. 2 Rol. Ab. 563. Shorland v. Govett, 5 B. & C. 485; S. C. 8 D. & R. 257. Smith v. Gates, 21 Pick. 55. Coffin v. Vincent, 12 Cush. 98. Russell v. Hanscomb, 15 Gray, 166. Munroe v. Merrill, 6 Gray, 236. Williams v. Babbitt, 14 Gray, 141. The same rule holds good in the case of an officer who, after arresting a person on criminal process, omits to perform the duty required by the law, of taking him before a court.' Tubbs v. Tukey, 3 Cush. 438.
The only justification set up in the answer is, that the defendant, being chief of police of the city of Cambridge, found the defendant in a public place in a state of intoxication, disorderly and disturbing the peace, and took him and detained him at a police station for a short space of time and until he had recovered from his intoxication, and then discharged him. But the St. of 1869, e. 415, § 42, which directs an officer to take such a person without a warrant, and detain him in some proper place until he has so far recovered as to render it proper to take him before a court of justice, further expressly enacts, that “ the officer shal!
Exceptions overruled.