The opinion
Metcalf, J.
We grant a new trial in this case upon a single ground, namely, because the jury were instructed that “if Stoddard was arrested in the station, and by the negligence of the officer got away from him into the railroad car, and, after being again taken hold of, he was, by overpowering the officer, or by the interference of others, enabled to escape, the defendant would be liable.” This instruction supposes it to be law, that an officer, who has negligently permitted an escape of a debtor whom he has arrested on mesne process, is liable in an action for an escape, although he retakes the debtor upon fresh pursuit, and the debtor then forcibly rescues himself, or is forcibly rescued by others, from his custody. We are of opinion that such is not the law.
There is no room for doubt that an officer, after an escape, *354 may retake the escaping party upon fresh pursuit. Com. Dig. Escape, E. Sewell on Sheriffs, 441. Brown v. Getchell, 11 Mass. 14 . Nor is there any room to doubt that when a party, who is arrested on mesne process, rescues himself or is rescued by others, the officer may return the rescue, and is not liable to an action for an escape. Com. Dig. Rescous, D, 4. March, 1. May v. Proby, 3 Bulst. 200. Fermor v. Phillips, Holt N. P. 538. Cargill v. Taylor, 10 Mass. 207 . And we nowhere find any distinction suggested between a rescue effected after a re-caption, and a rescue from a first arrest. Nor do we perceive any reason for such distinction. Whether the instruction as to the officer’s duty to call for assistance would, of itself alone, be a sufficient cause for granting a new trial, we need not now decide. New trial granted.