17 Johns. 63 | N.Y. Sup. Ct. | 1819
The defendant cannot take advantage of the misdirection of the capias, after he has appeared to it and pleaded ; it being a defect in the process, which is clearly amend
Judgment reversed.
Vide Low v. Little, post, note (a).
An action against the sheriff, for the escape of a prisoner in execution from the liberties 'of the gaol, is not well commenced by handing a writ to si person with directions to go and see the prisoner off the limits, and then to deliver the writ to the coroner. The writ must be either actually delivered to the coroner, or left at his office, Or be issued and sent to him, with the absolute, positive and unequivocal intention to commence the suit, while the prisoner is off the limits ; and to support the action for an escape, the fact of the prisoner being off the limits, must be affirmatively, and satisfactorily shown, by direct and positive proof. Nothing will be intended or inferred, unless it be plain and irresistible, to charge the sheriff. Visscher v. Gansevort 18 Johns. Rep 496.