Majority
p. 553Mumford against Armstrong.
Headnote
One who °g°a|J.s ^’ugh with. th° con-sheriff, may be again arrested on a second ca. sa.The sheriff can receive nothing in satisfaction of a ca. sa. but money, or its equivalont.
If he discharge the party arrested, on receiving his draft upon a third person, this is a voluntary escape.
Judgment of nonsuit having been obtained against the plaintiff, the defendant’s attorney issued a ca. sa. for the costs, to the sheriff of Oneida, who arrested the plaintiff, received his draft on E. B. for the money, which he was directed by an endorsement on the ca. sa. to receive, and discharged the plaintiff: whereupon the defendant’s attorney issued another ca. sa. upon which the plaintiff was again arrested.
A motion being made to set this last execution aside, the following authorities were cited: Bank of Orange v. Wakeman, (1 Cowen’s Rep. 46, 47, and note (a) at the end of that case;) Vin. Abr. Execution, (X. a.) pl. 10; 1 Sel. Pr. 536; 2 Dunl. Pr. 832-3.
J. Bradish, for the motion.
L. F. Stevens, contra.
In the Bank of Orange v. Wakeman, (1 Cowen’s Rep. 46,) we held that the sheriff’s taking a promissory note for the money upon ajñ. fa. in his hands would not operate as payment, even though he returned the exe
p. 554
cution satisfied. The draft, in this instance, not being a payment, the act of permitting the defendant to go at large was a voluntary escape, and the plaintiff clearly had a tight to issue another ca. sa. and proceed to the second arrest.[1] The sheriff could receive nothing in payment but money, or us equivalent.
Motion denied.
(a) (a) See 1 R. L. 426, s. 24. 8 John. Rep. 361 .