1 Wend. 398 | N.Y. Sup. Ct. | 1828
By the Court,
It was contended at the circuit and upon the argument of this case, that the plaintiff having brought a suit for a voluntary escape, had elected to consider Hopkins out of custody; and having done no act to affirm the imprisonment of Hopkins after his commitment to prison, he is now at liberty to consider Hopkins as legally in custody at his suit, when the escape took place for which this suit is prosecuted. The judge at the circuit overruled the defence, and allowed the plaintiff to recover for the amount endorsed on the ca. sa. and interest from the docketing the judgment to the commencement of this suit.
On the question of interest, the judge erred. The statute (1 R. L. 425, s. 9,) makes the sheriff answerable Jor the debt and damages for which the prisoner w;as committed. This was so decided in Rawson v. Dole, (2 John. Rep. 454,) and in Thomas v. Weed, (14 Johns. R. 255,) wuqre .itris stated, that the plaintiff had bis election to bring debt upon the statute and recover what the statute gives ; or to bring case at common law, and recover the true amount of his damages, whatever they may be. Had case been brought, the defend
It becomes necessary therefore, to examine the principal ground of defence. Did the commencement of the suit for a voluntary escape of Hopkins, determine the plaintiff’s election to consider him out of custody ? If so, he was not a prisoner at the suit of the plaintiff at the time of the escape for which this suit is brought.
The ca. sa. upon which Hopkins was imprisoned, was returnable at the the 'Nov. term, 1823, of the common pleas. The writ in the action for the voluntary escape, was returnable at the October term, 1823, of this court. The escape for which this suit is brought, first took place in the winter of 1824. Between a voluntary and a negligent escape, there is a striking difference as regards the rights of the sheriff. His liabilities to the plaintiff are the same in both cases. There is, however, a difference as to the remedy. In case of a negligent escape, if the prisoner return before suit brought, the escape is purged and he is of course a prisoner again at the suit of the plaintiff But in case of a voluntary escape, although the prisoner return before suit brought, the escape is not ipso facto purged as in case of a negligent escape ; but the plaintiff may prosecute for it. He may however affirm him in prison at his suit, but such affirmation will not be presumed. It requires some positive act; either new process, or notice that the prisoner is received again as a prisoner at the plaintiff’s suit. The sheriff’s rights, however, in relation to the prisoner, are very different. In case of a negligent escape, the sheriff may pursue and retake the prisoner ; in case of a voluntary escape, be cannot without authority from the plaintiff: yet it seems, in case of a voluntary return of the prisoner, the sheriff may receive him into custody, but cannot detain him without the authority or as
The case of Rowson v. Turner, (4 Johns. R. 469,) proves, that when a new sheriff receives a prisoner from his predecessor, he is bound to detain him, notwithstanding a voluntary escape in the time of his predecessor. And also that a prosecution and judgment for such escape, against the former sheriff is a bar to an action against the new sheriff for a subsequent escape. Van Jfess, justice, who delivered the opinion of the court, says, “ He, (the plaintiff) ought not to be allowed to proceed against the sheriff for the escape, and at the same time hold the prisoner in execution.” In this case, the. plaintiff had proceeded to judgment; of course, the fact of the voluntary escape had been proved. In the case of McElroy v. Mancius, (13 Johns. R. 122,) the court, referring to the case of Ramson v. Turner, considers it as deciding that the bringing a suit is the determination of the plaintiff’s election, which he had, either to consider the prisoner out of custody or in execution. The case of a new sheriff receiving a prisoner from his predecessor, it has been observed, is an exception to the general rule, as to the legality of his detention after a voluntary escape without authority from the plaintiff the reasons for which need not here be stated.
From the principles established in the latter case, it follows that the bringing a suit against the sheriff is an election on the part of the plaintiff to consider Hopkins out of custody. It would be idle for a plaintiff to prosecute the sheriff for an escape, when in truth .no escape had happened; but is the commencement of such a suit to conclude the plaintiff? The commencement of a suit seems to be an assertion by
New trial granted.