195 Mass. 440 | Mass. | 1907
We have not found it necessary to pass upon all the questions raised by the defence. The plaintiff finds himself face to face with a dilemma either horn of which is fatal to his case.
If, as is contended by the defendants, the arrest was illegal, then the recognizance is invalid (Atwood v. Wheeler, 149 Mass. 96), the invalidity was not waived by the application to take the oath for the relief of poor debtors (Smith v. Bean, 180 Mass. 298), and hence the plaintiff has no case.
If, as is contended by the plaintiff, the arrest was legal, then
The remedy, if any the plaintiff has, is not by a suit upon the recognizance.
Exceptions sustained,.