| N.Y. Sup. Ct. | Feb 15, 1854
I incline to the opinion that the facts stated in the answer demurred to in this case are not sufficient to constitute a defence. George Gilbert, for whose escape the sheriff is prosecuted, was charged in execution upon final process, and was in actual custody. The substance of the answer to which the demurrer is interposed is, that Gilbert was afterward arrested by virtue of a warrant issued by a police justice of the city of New-York, on a charge against him for obtaining goods by false pretences, and that he was taken to the city of New-York before the police justice, and by him committed, after examination, to close confinement in the prison of that city, where he still remains; and that such arrest and imprisonment were without the assent and against the will of both the sheriff and Gilbert, which is the same escape alleged in the complaint. The arrest under the warrant of the police justice was unlawful, and being so, it was a rescue of Gilbert from the sheriff’s custody, which is no defence to the sheriff in an action for an escape of a debtor confined on final process. (Bac. Abr. Rescue, (E.) vol. 8, p. 589; Phila. ed., published by Thomas Davis, 1846.
I say the arrest was unlawful because, .Gilbert being charged in execution, was in the custody of the law, and could not be
The sheriff’s liability for an escape of a person charged in execution is exceedingly severe. It is likened to that of a common carrier, where nothing, it is said, will excuse from a literal and strict performance, but the act of God or the public enemy. Fairchild agt. Case, (24 Wend. 381, and authorities there cited.)
There must be judgment for the plaintiff on the demurrer. I see no reason for allowing the defendant to amend this answer. There is no objection to the manner or form of the pleading. If I am correct, it is bad in substance, and cannot be made good by amendment. The answer is one of several defences