The opinion of the Court, Shepley, C. J., Wells, Rice, and Hathaway, J. J., was drawn up by
Wells, J.The writ de homine replegiando lies in favor of a person unlawfully imprisoned. Richardson v. Richardson, 32 Maine, 560. The question presented is whether the plaintiff was unlawfully imprisoned.
The original writing signed and sworn to by the plaintiff, together with his confessions, show very clearly his enlistment in the army of the United States as a soldier. It also appears from his confessions and .from the records of the war department, that he was a deserter. He was arrested by *131the defendant, who caused him to be confined in the jail at Bangor. The first section of the Act authorizing this writ must be construed in reference to the whole Act, by which it appears, that one may be entitled to the custody of another, although that custody ma}'- not be derived from a civil or criminal process.
The provisions of the constitution of this State and of the United States, cited in argument, do not forbid the arrest of deserters from the army without warrants, nor were they intended to prevent the enactment of suitable and proper laws for its government.
By the Act of Congress of April 10, 1806, prescribing the rules and articles by which the armies of the United States shall be governed, it is provided, “ Art. 78, non-commissioned officers .and soldiers, charged with crimes, shall be confined, until tried by a court martial, or released by proper authority.”
No warrant is required for their arrest, nor is the manner of confinement specified. The plaintiff having deserted was subject to confinement until he should be tried, and it was the duty of the defendant to cause him to be safely kept. There was no violation of law in confining him in the county jail. The jailor was under no obligations to receive him, but his consent to do so, furnishes no just ground of objection on the part of the plaintiff. Nor is it apparent that the place of confinement was improper, nor that the defendant departed from the line of his duty. There was probably no other convenient mode by which he could securely keep the plaintiff.
It is contended, that the imprisonment was too long. The Act before mentioned provides, “Art. 79, no officer or soldier, who shall be put in arrest, shall continue in confinement more than eight days, or until such time as a court martial can be assembled.” The plaintiff was confined ten days before he was liberated by the present process, but it does not appear, that a court martial could be assembled within that period, and consequently the confinement did not exceed the bounds authorized by the law.
*132It is further contended, that there was no legal evidence of the authority of the defendant to make the arrest. His commission was not produced, but a copy of it from the records of the department of war was offered.
It is not necessary in the present case to decide whether such copy is admissible, for it was proved, that the defendant was an acting lieutenant in the service of the United States at the time he made the arrest. His authority could not be presumed from the mere act of arresting, but the testimony is understood as embracing other acts performed in that capacity.
When one has acted in the discharge of the duties of a public office, under color of a legal appointment, although his commission or appointmeht is not produced, his acts have been held valid between third persons. Fowler v. Bebee & al. 9 Mass. 231; King v. Gordon, 2 Leach’s Crown Cases, 581; 3 Cruise’s Dig. 159; Doty v. Gorham, 5 Pick. 487; Buchnam v. Ruggles, 15 Mass. 180; Cottrill v. Myrick, 3 Fairf. 222. And there are authorities, which decide, that generally where such officer is a party to the record and justifies under his authority, his official acts are prima fade evidence of it. Potter v. Luther, 3 Johns. 431 ; Wilcox v. Smith, 5 Wend. 231; State v. Wilson, 7 N. H. 543; 1 Greenl. Ev. sect. 83 and 92. It is not perceived, that any evil can arise from the adoption of this rule, for where there is cause to doubt his authority, when he is the party to the record, those who question it will be at liberty to show, that there is no lpgal ground for its exercise. The question presented in this case was not raised in Cottrill v. Myrick, and the order of proof, if tho town clerks had been parties, was not investigated.
The evidence introduced must be deemed sufficient to show, that the defendant was a lieutenant de facto, and that he was duly qualified by taking the oath required by law. Such appointment and qualification may be presumed from the acts done, and this presumption will remain until it is removed by other evidence.
*133The objection, that the plaintiff had a right to desert because he had not received all the wages due to him, cannot prevail. The Act of Congress, before mentioned, provides by Art. 20, that “all officers and soldiers, who have received pay, or have been duly enlisted, in the service of the United States, and shall be convicted of having deserted the same, shall suffer death, or such other punishment as by sentence of a court martial shall be inflicted.” This Act was so far modified by that of May 29, 1830, as to abolish the punishment of death for desertion in time of peace. The plaintiff having enlisted and deserted was properly arrested for the purpose of being tried; whether he should have been convicted, it is not our province, but that of a court martial, having jurisdiction of the offence, to decide. By becoming a soldier, he has subjected himself to the laws applicable to that condition, and he must submit to the mode of administration, which they have provided.
According to the agreement of the parties, the plaintiff must become nonsuit, and the defendant have judgment for a redelivery of the body of the plaintiff, to be disposed of agreeably to law.