opinion that the plaintiff was entitled to go into evidence to disprove the alleged arrest at M. And for the rejection of the evi dence, offered for that purpose, the judgment of the county court must be reversed." See also Francis vs. Wood, 28 Maine, 69. 4. But we are of opinion that the jury were wrongly instructed that they were to determine whether Thomas ought not, under the particular circumstances of the case, to have called for aid in arresting Stoddard, and whether, if he had done so, he would not have secured him, and whether his omission to call for aid showed negligence on his part. Though an officer has authority, yet he is not bound, to call for aid in the service of mesne process, and is not liable for an escape that might have been prevented by his calling for aid, if the party arrested by him rescues himself or is rescued by others. May vs. Proby, 3 Bulst. 200, 1 Rol. R. 388, 440, and Cro. Jac. 419. Watson's Sheriff, 60. Griffin vs. Brown, 2 Pick. 304, 310. Buckminster vs. Applebee, 8 N. H. 547. Sutton vs. Allison, 2 Jones Law R. (N. C.) 341. 5. We are of opinion that, as to all things except the duty of Thomas to call for aid in the service of the process in his hands, the jury were rightly instructed that it was for them to decide whether Thomas used all reasonable and proper exertions to secure Stoddard, and that this question was not to be decided by the opinion and judgment of Thomas, at the time. But, for the reason already given, the instruction was erroneous, so far as it left the jury at liberty to decide whether Thomas, by not calling for aid, Omitted a necessary and proper exertion to secure Stoddard. 6. We are also of opinion that the jury were wrongly instructed that to enable the defendant to set up a re-arrest of the debtor Stoddard) by the officer (Thomas) the hold of the debtor by the officer would not be sufficient, unless the debtor was held and stopped, or the officer had such a hold of him, that it was in his Dower to stop him. There cannot be either an escape or a rescue of a person, unless he is first arrested. If an arrest is prevented by a party's avoidnce or resistance of an officer, or by the interference of others, he party does not escape, and the officer is not liable in an ction for an escape, but is liable, if at all, in an action for negli gence in not making an arrest when he might and ought. And the law is the same in regard to a rescue. An officer cannot legally return a rescue of a party whom he had not arrested. Such a return would be false. We have therefore, in deciding on this last instruction given to the jury, to consider the question -what constitutes an arrest? And our opinion is, that an officer effects an arrest of a person whom he has authority to arrest, by laying his hand on him for the purpose of arresting him, though he may not succeed in stopping and holding him. 1 Hale P. C. 459. Genner vs. Sparks, 6 Mod. 173, and 1 Salk. 79. Sheriff of Hampshire vs. Godfrey, 7 Mod. (Leach's ed.) 289. Williams vs. Jones, Rep. Temp. Hardw. 301. Bul. N. P. 62. Watson's Sheriff. 90. United States vs. Benner, Bald. 239. And we need not express an opinion as to what else will or will not amount to an We think that the instruction, prayed for on this point, by the defendant, should have been granted, and that the excep tion taken to the instruction that was given must be sustained. New trial granted. arrest. 1. The law of arrest, which seems simple, has been, first and last, a good deal debated, and the decisions upon the subject are not altogether harmonious. In regard to the first point decided by this case, there seems no good ground of question. To hold the return of the officer primâ facie evidence of the truth of the facts contained therein, is nothing more than giving him the advantage of that presumption which every public officer is entitled to claim in his favor, that he has performed his duty, until the contrary is shown. And to ask any further immunity, as that his return shall be held conclusive between the parties, would lead practically to the absurdity, that an officer could not be made liable even for a false return, which is carrying the matter further than has ever been done, so far as we know. The return of an officer has been held conclusive of the facts stated therein, so far as the particular action is concerned, in many of the Ame 2. In regard to the re-arrest, the case is quite susceptible of the view taken in Cooper vs. Adams, 2 Blackf. 294,"t the arresting of a prisoner and the retak ing him on fresh pursuit, after an escape make but one effective arrest." But, is considering the recaption it is certain nothing more is required than what wa necessary to constitute an arrest in the first instance. And this consists chief in having the proper authority, and 1 properly asserting it, when the prisone is within the power of the officer. Afe this the defendant is bound to submit, and if he will not, but forcibly bress away, it is one form of rescue, and may ne so returned. As is said by Holt, Ch. J., in Atwood vs. Burr, 7 Mod. 3, 8, "If a window be open and a bailiff put in his hand and touches one for whom he has a warrant, he is thereby his prisoner." But if the person is never in the power of the officer, it is not an arrest, even if he Couch him, as he might do, when not in a situation to control his movements. As if he said to one on horseback or in a coach, "You are my prisoner," and even touch some part of his person, if he nevertheless drive off, it is no arrest, for he was not in his power. But if the person thus approached do submit himself to the power of the officer, it is a good arrest. Horner vs. Battyn, 12 Geo. 2; B. N. P. 62; 1 Ventris, 306. But it is certainly not regarded as requisite, at the present day, that the officer should touch the person to constitute an arrest, as asserted in Genner vs. Sparkes, 1 Salk. R. 79; S. C. 6 Mod. 173. This doctrine is reiterated by WooDSURY, J., in Huntington vs. Blaidsell, 2 New H. R. 318, as still being sound law. But this view is abandoned in most of the modern cases. United States vs Benner, 1 Bald. R. 234; Gold vs. Bissell, 1 Wend. R. 215. Some such view as this seems to be upheld in Hollister vs. Goodale, 8 Conn. R. 332, but that case is denied to be law even in regard to the attachment of personal property. Lyon vs. Rood, 12 Vt. R. 233, and cases cited; and it is certain no such rule could be maintained, either in regard to the arrest of the person or the attachment of personal property. In the important and leading case of Blatch vs. Archer, 1 Cowp. R. 63, it was held that a mere servant of the bailiff might make a good arrest, although thirty rods away from the bailiff and not within the view of such officer. But both the officer and his assistant must be then occupied in the purpose and pursuit of such arrest. It will not do for a stranger, or the party even, to take a person and carry him by force, where the officer can be found. Hall vs. Roche 8 T. R. 187; Wilson vs. Gary, 6 Mod 211. The cases which have questioned the legality of an arrest, where the party was put under no physical restraint, but, upon being informed that the officer had a capias, submitted to his control, are certainly not defensible. Arrowsmith vs. Le Mesurier, 5 B. & P. 211. It is true, no doubt, that if the person resist, and is never in the power of the officer, that is, where, if he had strength, he might have controlled him, it will not constitute an arrest. As when the person, on being informed that the officer had process against him, snatched up a pitchfork and kept off the officer, threatening to kill him if he came nearer, and thus retreated into his house, and shut the door against the officer, it was held no good arrest. Mod. R. 173. But, as is said by Lord Hardwicke, in Williams vs. Jones, Cas. temp. Hardw. 201, 2 Str. 1049, "If a bailiff comes into a room and tells the defendant he arrests him, and shuts the door upon him, there is an arrest, for he is in custody of the officer." And the same is equally true if he is near enough to the person to lay his hand upon him and inform, or in any way give him to understand that he has process and arrests him. It thereby becomes the duty of such person to submit to his authority; and his forcibly going at large is a rescue of himself, and, as such, punishable by indictment. James Wingfield's Case, Cro. Car. 251, who was fined £500, and his abettors £200, £180, and 500 marks each, for such an offence. Genner vs. Sparks, 6 Sir There can be no question that, in a case like the present, it was the duty of the person arrested to submit to the control of the officer, even if nothing had occurred before he took him by the wrist in entering the cars. And his forcibly breaking away from him and escaping from the cars, was an obvious rescue of himself, and properly returned as such. The only doubt which can be fairly raised in regard to the case, in our view, is, whether the officer, having such abundant opportunity to call to his aid the bystanders, who, by express statute, are required to assist in the arrest, he should not have done so. From the opinion of the judges of the Court of Common Pleas, in Howden vs. Standish, 6 Com. B. R. 504, it is evident that the early cases, such as May vs. Proby, Cro. Jac. 419, 3 Bulstr. 198, 1 Roll. R. 388, and Crompton vs. Ward, 1 Strange, 429, wherein it is held, that if an officer arrest a person upon mesne process, and he rescue himself, or his friends rescue him, the officer is excused, are understood to have had reference to such cases as the officer might be called upon to act in suddenly, and where he could not readily have obtained aid. This is the reason urged in the English books, and in these early cases. distinction which has so long obtained upon this point, between mesne and final process, making the officer liable in the former and not in the latter, is founded upon this presumption. The In the case of Howden vs. Standish, supra, Rolfe, B., who presided at the trial, instructed the jury that when, as in the present case, the officer was called upon to execute mesne process of capias, under circumstances likely to provoke resistance on the part of the defendant and his friends, it was his duty "to be provided with a force sufficient to overcome any degree of resistance that might be offered to the execution of the process, and that, if necessary, it was bis duty to call upon the posse comitatus to assist him in the theatre." That was a case where the officer had process against an actor, whom the company had conspired te defend against the arrest. The defendant while upon the stage was pointed out to the officer, but he did not attempt to arrest him. The full bench evidently concurred with the opinion of Baron Rolfe, but the case turned upon a point in the pleadings. In delivering the opinion of the full court, Coltman, J., said, "The question here is, whether he (the officer) is not bound to provide such a force as will enable him to effect a caption in spite of every such resistance as he has reason to anticipate ;" and after citing the early cases, and commenting upon Crompton vs. Ward, concludes: "The reasoning of this case seems to establish the prin ciple laid down by the learned judge [Baron Rolfe], that the sheriff is bound to provide such a force as will enable him to effect his caption, in spite of any resistance which he has reason to anticipate." And this is the case of mesne process. The judge then goes on to argue, that allowing the sheriff to return a rescue on mesne process is "an exceptional case, i being matter of indulgence to the sheriff,! who cannot always have the posse comi- ; tatus with him, in consequence of the pos sibility that he may be taken unawares and called upon to execute the writ when he has no sufficient force;" and, as the learned judge argues, all the cases show that this indulgence to the sheriff **ought not to be extended," and that he is bound to provide against "a resistance which he had reason to anticipate, and with reference to which he was not taken unawares." It seems to us that the reasoning of this case, which is the latest de- . termination of the English courts in regard to the point, so far as we have been able to find, might have led to the conclusion that, when the officer has at his command all the assistance he could desire or possibly need, he was at least, as a careful and considerate officer, resolved to execute the process effectually, bound to command such assistance as was at his disposal. But the cases have not, perhaps, gone this length; and in favor of officers we certainly should be content to allow all indulgence consistent with good faith, and the decision takes, perhaps, the safer view upon this point, and clearly so upon the main point involved. The case is one of considerable interest to the profession. I. F. R. In the Supreme Court of Pennsylvania, Eastern District, Philadelphia, March, 1862. JOHN C. CLARK vs. JOHN L. MARTIN. H. being the owner of two city lots, one a corner property, and the other adjoining it, granted and conveyed the corner lot to D. and R. in fee; reserving a perpetual ground rent, upon the express condition that the grantees, their heirs and assigns, should not erect any building upon the back part of the lot higher than ten feet. H. at the time, and for some years afterwards, occupied the adjoining property as his residence. By five several mesne conveyances all made subject to the condition, the corner property became vested in M. in fee; H. having some years prior to the conveyance to M. granted to the then owner permission to raise his back building to the height of eleven feet, expressly stipulating that such permission should not prejudice or impair the condition. H. died seised of the adjoining property, and also of the rent reserved out of the corner lot. His testamentary trustee granted and conveyed the adjoining property to C., no mention being made in the deed of the restriction imposed on the corner property. M. subsequently by sundry mesne conveyances became the owner of the rent reserved, which thus merged; and M. threatened to build in entire disregard of the restriction. C. filed a bill in equity to restrain him, and applied for a special injunction which was refused; and M. went on and erected a three story back building. Held, upon appeal from the decree of the court below, refusing the injunction and dismissing the bill: 1. That although the clause imposing the restriction was a strict condition in law, yet equity would only inquire into the substantial elements of the agreement, and would enforce it for any party, for whose benefit it appeared to be intended 2. That the duty of the defendant not to build in violation of the condition was clear; and that this duty was not reserved as a mere personal obligation to H. the original grantor, his heirs and assigns; nor for the benefit of the ground rent; but that it was for the benefit of the adjoining property then owned by H., |