Wickelhausen v. Willett — 12 Abb. Pr. 319

Majority

p. 319

WICKELHAUSEN a. WILLETT.

New York Superior Court;

General Term, May, 1861.

Headnote

Arrest.—Escape.

Where a prisoner who has given bonds for the limits is arrested by authority of law, within the limits,—e. g., by the sergeant-at-arms of the House of Representatives, under a warrant issued by the House,—and is carried off the limits against his will and without his consent, and after his release from such arrest,

p. 320

he returns as soon as practicable,—such absence is not ah escape, for which the sheriff is liable.

Appeal from a judgment.

This was an action brought by the plaintiff against the sheriff, for the escape of John D. Williamson, who had been arrested upon execution against his person, and was confined within the liberties of the jail, having given the usual bond to such sheriff.

The action was tried before Mr. Justice Hoffman, a jury being waived.

It appeared that on February 18th, 1857, the plaintiff recovered judgment against Williamson, upon which Williamson was liable to arrest; and an execution" against property having been issued and returned unsatisfied, an execution against the person of Williamson was duly issued to the defendant, James C. Willett, sheriff. That pursuant thereto, the defendant arrested Williamson, and confined him within the jail-liberties of the city and county of Hew York, Williamson having given the bond- entitling him to such jail-liberties, pursuant to the statute.

On or about the 15th day of January, 1858, the House of Representatives of the United States, in due form of law, issued its subpoena, directed to Williamson, and requiring him to appear and give evidence before the House, or a committee thereof, in a matter then pending and under investigation by the House, and within its jurisdiction.

Williamson was then confined within the jail-liberties, and did not appear in obedience to such subpoena and summons. Thereupon, and on the first day of February, 1858, the House . of Representatives adjudged Williamson guilty of contempt, in not appearing as he had been required, and issued, in due and proper form, to its sergeant-at-arms, the person designated by law to execute the same, a warrant directing him to arrest Williamson, and forthwith bring him before the House.

In pursuance thereof, the sergeant-at-arms came within the jail-liberties and arrested Williamson, and compelled him to go under the warrant to the city of Washington, and produced Ms body before the House of Representatives.

p. 321

This action was commenced on the 5th day of February, 1858, and while Williamson was held and detained in the custody of the sergeant-at-arms, under the warrant, at the city of Washington, and without the liberties of the jail.

As soon as Williamson was released from the custody of said sergeant-at-arms, and on the 9th day of February, 1858, he returned to the liberties of the jail.

The court at special term gave judgment for the defendant. The opinion is "reported 10 Ante, 164. From this judgment the plaintiff now appealed to the general term.

—The statutes' and authorities seem to justify these conclusions:

1. Williamson was seized and taken off the limits by authority of law, against his will, and without his consent.

2. At the time he was so seized, his right to the jail-liberties, as between himself and the sheriff, was absolute. The sheriff had no right to confine him in close custody, and had no control over his movements, except to retake him if he escaped. (3 Rev. Stat., 5 ed., 734, § 68, [47]; Ib., 736, § 85, [64].)

3. Williamson did not “ go at large, without the liberties of the county,” within the meaning of those words, as used in section 68 [47], or within the' meaning of the condition of his bond. (Section 63, [42].) His removal was by authority of law, and his being off the jail-liberties by the exercise of such authority, and during the time necessary for his return to the jail-liberties, after having been discharged from the custody of the sergeant-at-arms, was not an escape within the meaning of his bond. Whether, if the sergeant-at-arms had not' returned him to 'the liberties, or he had not voluntarily and immediately returned when set at liberty, his being subsequently on the limits would not be an escape, is a question not presented by this case. He was arrested on the 2d of February, 1858, and taken to Washington, and the case states “ that, as soon as the said Williamson was released from the custody of the said sergeant-at-arms, and on the 9th day of February, 1858, he returned to the said jail.” Holding that his being off the limits, under the circumstances above stated, is not an escape,

p. 322

does not sanction-the conclusion that the sureties in the limits bond would not be liable if Williamson had failed to return within the limits, as soon as practicable, after he was free to do so.

The proposition on which we think the judgment should be affirmed is, that at the time this action was commenced Williamson was off the limits, not by any act or agency of his own, but compulsorily by process and authority of law. That his being so off was no more an escape than if he had been at the time removed and held by 'habeas corpus ad testificandum, as in Hassam a. Griffin ( 18 Johns., 48 ), or by force of a valid judicial order, as in Fuller a. Davis ( 1 Gray, 612 ).

Judgment affirmed.

Footnotes

* Present, Bosworth, C. J., and Woodruff and Hoffman, JJ.