Even if the original arrest of the plaintiff was legal and valid, yet I think that his imprisonment in the county jail of Schenectady for several days afterwards was unauthorized and illegal, and that the action was maintainable for that reason.
The statute under which the defendants claimed to act, and which conferred the power to make the arrest, requires that the officer shall send the deserter to the nearest military commander, or military post. (Laws of U. S. Sess. 1863, chap. 75, § 6.) In the case under consideration the plaintiff was kept in jail for several days, without being sent to the nearest military commander or military post, as was required by the statute. It does not appear that he was kept in custody temporarily with a view of being sent as the law provided, prior to the time when he was brought up to be sent to blew York, nor that the length of time he was thus kept-in custody was necessary or proper, prior to his being taken to the proper place. The statute must be .strictly pursued, as it is in derogation of the common law. The duties imposed under it were ministerial, and in the proper discharge of them an officer is clearly bound to embrace the first opportunity to bring the prisoner before a competent tribunal, where he might be tried for the offense charged. If the defendants had authority to detain the plaintiff in custody for several days, as they did, then they had legal power to do so for tfie period of a week or a month, • or even for a longer time. They possessed no judicial functions which authorized them to investigate and to determine the question of the guilt or the innocence of the plaintiff. Under the circumstances as presented, it seems to me .that the duty of the officer is plain, and definitely marked out, and to justify an arrest and detention he must pursue the statute • with strictness and *104fidelity. This the defendants apparently failed to do. They kept the plaintiff, who was entirely guiltless, incarcerated for a' considerable period of time, with no positive proof against him, and while protesting his innocence of the charge made. In so doing they acted in violation of the statute and exceeded their authority. They had no legal right to make such an unreasonable detention, before sending the plaintiff to a military commander, or a military post. *Tf these views are sound and correct, the court erred in granting the nonsuit and in dismissing the complaint.
[Albany General Term, September 17, 1866.As a new trial must be granted, for the reasons already given, it is not necessary to examine the other questions presented.
The nonsuit must be set aside, the judgment reversed, and a new trial granted, with costs to abide the event.
Miller, Ingalls and Bogebomn, Justices.]