1. When ;his case was formerly before the court, (1 Allen, 350,) we decided that the averment, in the declaration *498that the writ against Stoddard was returnable to the court of common pleas, “ as by the record of the same writ, in the same court remaining, more fully appears,” was supported by proof that the writ was returned to the clerk’s office and placed in the files of non-entries. So the reporter understood and stated the decision, as he was authorized by the fact that the point was argued, with other points, and that the court granted a new trial “ upon a single ground,” namely, an erroneous instruction given to the jury as to the defendant’s liability for an escape ; thereby, by necessary implication, overruling the exception which is now brought again before the court. A writ, when returned, is matter of record. 1 Stark. Ev. (4th Amer. ed.) 285. Powell on Ev. 293. 1 Greenl. Ev. § 521.
2. It is not a matter of right that depositions used in the trial of a cause shall be delivered to the jury, on their retiring to consider of their verdict. It is matter of discretion, the exercise of which by a judge is not a legal ground of exception. See Graham on New Trials, 80; Spence v. Spence, 4 Watts, 168; Alexander v. Jameson, 5 Binn. 238.
3. We are of opinion that the judge correctly ruled that the return of Thomas, on the writ against Stoddard, was not conclusive in this action against the defendant for an escape. The defendant relies on the position, often found in the. books, that an officer’s return cannot be contradicted by parties and privies, except in an action against him for a false return. But we cannot see, on principle, any more reason why his return should be conclusive in this action for an escape — which assumes that the return was false—than in an action directly charging him with a false return. If his return be true, he may prove it to be so, as well in this action as in the other. His return is prima facie evidence of a rescue, and the burden is on the plaintiff to prove it false, as well in this action as in the other. And not one of the numerous books cited by the defendant’s counsel, nor any case in any English book, shows that an officer’s return of a rescue has ever been decided to be conclusive evidence in his favor in an action brought against him for an escape. On the contrary, there are recent English authorities which show *499that it is not conclusive. It was so decided by Holroyd, J. in Adey v. Bridges, 2 Stark. R. 189. In Jackson v. Hill, 10 Ad. & El. 492, Patteson, J. denied that a return was conclusive in all cases except in an action for a false return, and said : “ The case cited from the Yearbook ” (5 Edw. IV. 1) “ is strong to show that a return is conclusive only in the particular cause in which it is made; and there is no authority the other way.” See also Vin. Ab. Return, O. 25; 1 Saund. Pl. & Ev. (2d ed.) 1074; Atkinson’s Sheriff Law, 247, 248. Watson’s Sheriff, 72. 3 Phil. Ev. (4th Amer. ed.) 701. 1 Taylor on Ev. 702, 703.
If there are any decisions in this country which support the defendant’s exception to the ruling' on this point, we cannot follow them. We adopt the views of the supreme court of Vermont, in the case of Barrett v. Copeland, 18 Verm. 67, which cannot be distinguished, in principle, from the case before us. That was an action for an assault and battery and false imprisonment at B. The defendant pleaded, in justification, that he was a constable of the town of M; that he arrested the plaintiff at M. on an execution ; that the plaintiff escaped, and that he pursued and recaptured him in the town of B. and conveyed him to M. on the way to prison. On the trial in the county court, the defendant gave in evidence the execution and his return thereon, in which he set forth an arrest of the plaintiff at M. as averred in the plea. The plaintiff offered evidence to contradict the return, but it was excluded, and the defendant obtained a verdict, on which judgment was rendered. The supreme court reversed that judgment. “ The question,” said Royce, J., “ now presented is, whether the official return of a public officer is conclusive evidence in favor of such officer, in the prosecution or defence of a collateral action. We find it laid down as undoubted law; that such a return is admissible evidence in the officer’s favor; as also to affect the rights of third persons. But these authorities uniformly assert that when offered for such a purpose, it is but prima facie evidence. Its admissibility is put upon the ground of the general credit due to the return of such an officer, in cases where it is his duty to make a return. But, upon principle, it should be *500subject to contradiction by third persons, because they are neither parties nor privies to the transaction, and because they would not, according to any precedent with which I am acquainted, be entitled to a remedy against the officer for a false return. It should also be open to contradiction collaterally, even by a party to the process. We are therefore of opinion that the plaintiff was entitled to go into evidence to disprove the alleged arrest at M. And for the rejection of the evidence, offered for that purpose, the judgment of the county court must be reversed.” See also Francis v. 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 v. Proby, 3 Bulst. 200, 1 Rol. R. 388, 440, and Cro. Jac. 419. Watson’s Sheriff, 60. Griffin v. Brown, 2 Pick. 304, 310. Buckminster v. Applebee, 8 N. H. 547. Sutton v. Allison, 2 Jones Law B. (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 *501and stopped, or the officer had such a hold of him, that it was in his power 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 avoidance or resistance of an officer, or by the interference of others, the party does not escape, and the officer is not liable in an action for an escape, but is liable, if at all, in an action for negligence 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 v. Sparkes, 1 Salk. 79, and 6 Mod. 173. Sheriff of Hampshire v. Godfrey, 7 Mod. (Leach’s ed.) 289. Williams v. Jones, Rep. Temp. Hardw. 301. Bul. N. P. 62. Watson’s Sheriff, 90. United States v. Benner, Bald. 239. And we need not express an opinion as to what else will or will not amount to an arrest. We think that the instruction, prayed for on this point by the defendant, should have been granted, and that the exception taken to the instruction that was given must be sustained.
New trial granted.