Richards v. Porter

7 Johns. 137 | N.Y. Sup. Ct. | 1810

Per Curiam.

The prisoner Rykert was entitled to his discharge from prison, at any time before the return day of the writ, on giving a bail-bond, with .competent bail; and the defendant, as sheriff, was bound to let him go, on receiving such a bond. (Laws of N. Y. vol. 1. p. 210.) Though the prisoner was turned over to the defendant by the former sheriff, that assignment could not affect his right to be discharged on bail. The defendant was not bound to give notice to the plaintiff of the apt of taking a bail-bond, in any other way than by ah endorsement upon the writ, and that was not delivered to him. The irregularity was in the old sheriff, in not handing over the writ along with the assignment of the prisoner. He had no authority to return the writ after he was out of office. He should have delivered it to his successor, and the successor would or ought to have returned the writ into court, with the former sheriff’s return thereon, and his own endorsement, stating the fact of having let the prisoner to bail. (2 Roll. Abr. 457. C. 1 Bulst. 70. Dalton, 516. 4 East, 604.) This would have been the regular course, and then the plaintiffs would have had due notice of the condition of the party. It is to be presumed from the case, that the writ was specified in the indenture of assignment, as without such notice ; at least, the defendant would not have been bound to take or detain the prisoner. (Dalton, 15, 16. 3 Co. 71.) Whether he was responsible for. the prisoner, without delivery of the writ, might also be a question; but that is not an essential point in this case; for, if it be admitted that the defendant was responsible, he did no more than his duty in letting the prisoner to bail, and was only bound afterwards to see that special bail was entered. As no bail was put in, the plaintiff proceeded to a judgment under a mistake, and the judgment was erroneous. The defendant was not answerable at all for an escape, for there was none while he had charge of the prisoner. As, however, nominal damages only are recovered, the defendant, makes no objection to the verdict ; and the motion on the part of the plaintiff to set it aside, ought to be denied.

Motion denied.