In re Johnson — 21 Abb. N. Cas. 172

Majority

p. 172

MATTER OF JOHNSON.

N. Y. Supreme Court, First District, Chambers ;

January, 1887.

Headnote

Execution against the person; delivery to a prisoner in sheriff's custody.] An execution against the person is not a paper directed to a prisoner in the sheriff’s custody, within Code Civ. Pro., § 131', requiring the sheriff to deliver such papers to the prisoner within two days after they are received by him for the prisoner.

The return of the sheriff to a writ of habeas corpus directed to him, showed that he held the relator by virtue of -an execution against his person.

It was claimed that the relator was illegally detained because he had not been served with a copy of the execution, under Code Civ. Pro., § 131, which provides that. “ a sheriff, or jailor, upon whom a paper in an action or special proceeding directed to a prisoner in his custody, is lawfully -served, or to whom such a paper is delivered for a prisoner, must, within two days thereafter deliver the same tp the prisoner with a note thereon of the time of the service thereof upon, or the receipt thereof' by him.”

Section 131 of the Code of Civil Procedure, upon which the relator relies, does not refer to executions against the person. It relates to papers directed to-a prisoner in the sheriff’s custody. The execution against the person is directed to the sheriff, not to the prisoner, and-counsel have not referred me to any statutory provision requiring the sheriff to serve a Copy of such execution on the-prisoner. .

I am therefore of the opinion that as the sheriff returns that he by one of his deputies arrested the prisoner by virtue-of an execution against his person, issuing out of the city court, and as that execution is regular on its face, this writ-should be dismissed and the prisoner remanded.