4 Johns. 469 | N.Y. Sup. Ct. | 1809
delivered the opinion of the court. If a new sheriff regularly receives a prisoner from his predecessor, he is bound to detain him, and is answerable for his escape, although a voluntary escape may have existed in the time of his predecessor. The cases of Lenthal v. Lenthal, (2 Lev. 109.) of James v. Pierce, (2 Lev. 132. and 1 Ventris, 269.) and of Grant v. Louthers, (6 Mod. 183.) have so fully established this rule of law, that on this ground, if no other difficulty intervened, the plaintiff would be entitled to a new trial.
But it appears that the plaintiff elected to prosecute Dole, the former sheriff, to judgment, for the escape in his time; and a question arises, whether this does not bar the plaintiff of all right of action, against the present sheriff, for the escape of the prisoner, since he was committed to his custody. In the case of James v. Pierce,
The case states, that after the escape, in the time of Dole, in 1806, the plaintiff, so, far from affirming Bull to be in Dole's custody, charged Dole with the escape, and obtained judgment against him, for the whole amount of his debt. This appears to me to be a sufficient determination of the plaintiff’s election, not to consider Bull in Dole's custody; and the prosecuting Dole to judgment determines the election finally and irrevocably. Thus, “ if A. grant to B. for life, an annuity, or a robe at the feast of Easter, and both are behind, the grantee ought to bring his writ of annuity, in the disjunctive, for if the grantee bring his writ of annuity for the one only, and recover, the judgment,” says Lord Coke, “ shall determine his election for ever. Again, if the grantee bring a writ of annuity, and after the return thereof doth appear and count, this is a determination of his election in a writ of record; albeit, he never proceeded! any further.” (See Sir Rowland Heyward's case, 2 Co. Rep. 36.)
The plaintiff having made his election, he is concluded by it. This is reasonable. He ought not to be allowed to proceed against the sheriff for the escape, and at the same time hold the prisoner in execution. It is true, there are cases where the party has concurrent remedies for the same cause of action, against several persons.
Motion denied.