Potter v. Briggs — 1 Cai. 56

Majority

p. 82

*Potter against Briggs.

Headnote

After a lapse of five years the court will not order a formet sheriff to amend his return, according to the truth of the case by stating that the defendant had escaped from prison, if it was at a time when many others forcibly broke out.

This was an application to the court for an order on the heretofore sheriff, Lansing, to amend a return according to

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the real truth of the case. • The facts were, that the defendant had been arrested and duly committed to gaol, but was one of many others who had broken out of prison, in the year 1798. The sheriff had been ruled, and had returned the due execution of the writ, a delivery of the defendant’s body over to one of his deputies, and a rescue, but omitted totally the commitment to prison.

Troup,

on an affidavit stating the preceding circumstances, insisted on the court’s being under a moral obligation to order a return according to the truth of the case. That by the false one made, the sheriff avoided that liability for the full amount of the debt, from which nothing but an enlargement by public enemies of the state could exonerate him. It was a device to get rid of his legal responsibility; to leave the plaintiff only to his action for a false return, in which he could recover no more than his damage actually sustained, and in which the defendant’s insolvency might be urged against a recovery of any thing.

Harison,

contra, observed, that Troup had stated the very reason why his motion should not be granted; that of the plaintiff’s having it in his power to obtain a compensation in an action for a false return, to the full amount of what he really had suffered. The proceeding now was, to get from the sheriff a debt, of which not one shilling could ever have been obtained from the defendant. That the escape was at a time, full in the recollection of the court, when a number of the debtors broke out of the city gaol. Several had been indicted and sentenced to the state prison. The application too was very stale; the second sheriff was now in office since the escape, and five years had elapsed in silence. Perhaps the court might have some doubt how far it could in this manner interpose.

Troup, in reply, insisted on his former positions.

The plaintiff is not without remedy; he

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has his action on the return. We do not say that in no case shall a return against truth be amended, but in this, under all its circumstances, we think the plaintiff must be left to such redress as the law will give him without our interference.^[1]

Motion denied.

(a) (a) Potter v. Lansing, see 1 Johns. Rep. 215 , an action on the case for this very escape, in which 3,000 dollars were recovered by the plaintiff; but a new trial ordered; Kent, C. J., Spencer and Tompkins, Justices, thinking there ought to have been no recovery; Livingston and Thompson, Justices, contra. After a lapse of 20 years no judicial proceedings can be set aside for irregularity. Thompson v. Skinner, 7 Johns. Rep. 556 . But after a lapse of 12 years a rule for an attachment was granted against a sheriff for not returning an execution delivered to one of his deputies. Brockway v. Wilber, 5 Johns. Rep. 356 . Note, however, that he might have purged himself on interrogatories, and, therefore, in this very cause, he was discharged on showing that the fi. fa. had been delivered 14 years ago to his deputy, who had absconded, and died abroad, and it did not appear what Lad become of the writ. The People v. Gilleland, 7 Johns. Rep. 555 , citing, by the name of Brockway v. Willie, the above case.