§ 26. Action against officer making arrest of exempt person. An action
may be maintained, by the person arrested, against the officer or other
person making an arrest contrary to the provisions of the last section,
in which the plaintiff is entitled to recover treble damages. A similar
action may also be maintained, in a like case, by the party in whose
behalf the witness was subpoenaed, or the order procured, to recover the
damages sustained by him, in consequence of the arrest. But a sheriff,
or other officer, or person, is not so liable, unless the person
claiming an exemption from arrest, makes, if required by the sheriff or
officer, an affidavit, to the effect that he was legally subpoenaed or
ordered to attend, and that he was not so subpoenaed or ordered by his
own procurement, with the intent of avoiding arrest. In his affidavit he
must specify the court or officer, the place of attendance, and the
cause in which he was so subpoenaed or ordered. The affidavit may be
taken before the officer arresting him, and exonerates the officer from
liability for not making the arrest.