Majority
p. 61Bronson and others against Earl, late Sheriff of Onondaga.
Headnote
The defendant cannot take advantage of a defect in the direction of a capias ad resp. alter he has appeared to it, and pleaded j the defect being amendable. Where a ca- pias ad resp. against a sheriff for the escape of a prisoner in execution, was delivered to the wife of the coroner at his house, (the cor-ouer being then absent,) while the prisoner was actually off the limits of the gaol liberties, though he immediately thereafter returned, it is a sufficient commencement of an action, against the sheriff, before the return of the prisoner to the gaol liberties, so as to make the sheriff liable for the escape.IN ERROR to the Court of Common Pleas of the county of Onondaga. The plaintiffs brought an action of debt against the defendant, as sheriff, for the escape of one James MKellops, from the gaol liberties of the county.
The defendant pleaded nil debet, and gave notice, that if M. did escape, he immediately retook him, on fresh pursuit, and that M. immediately returned into the defendant’s custody, before the suit was commenced ; and filed an affidavit with the plea, that if M. did escape, it was without the consent, privity, or knowledge of the defendant.
At the trial in the court below j in February, 1818, the plaintiffs produced the record of the judgment against M., of * September term, 1816, and the ca. sa. issued thereon, returnable in February, 1817, with the sheriffs return thereon, endorsed cepi corpus in custodia. R. White, a witness, testified, that on the 10th of October, 1817, he saw said M. off the gaol limits, and while he was so off the liberties, J. Bronson, jun. handed him a paper, which he carried to and left at the coroner’s office, with his wife, in the absence of the coroner, and immediately returned, and still saw M. off the limits, milking his cow; and that M. immediately after returned to the gaol liberties. J. B. testified, that at the time mentioned by the witness, White, he saw M. off the limits, and immediately handed to White a capias ad resp. in favor of the plaintiffs against the defendant, which he had received a few days before from the plaintiff’s attorney, with directions not to deliver it to the coroner, until he should see M. off the liberties, and told White to deliver it to the coroner; and the witness remained at the same place, until W. returned from the coroner’s, during all which time M. was off the limits; but immediately thereafter returned to the liberties.
The capias ad resp. against the sheriff, which was produced, was directed to the sheriff of the county of Onondaga, instead of the coroner ; and the sheriff endorsed his appearance thereon, the next day after the escape, and after M. had returned to the gaol liberties. The jury found a special verdict, stating the above facts, on which the court below gave judgment for the defendant.
The cause was submitted to the court, on the record and return, with the points stated, without argument.
The defendant cannot take advantage of the misdirection of the capias, after he has appeared to it and pleaded ; it being a defect in the process, which is clearly amend
p. 62
able,[1] (Tidd’s Pr. 91. Stra. 155, 1 Hen. Bl. 222. 8 last’s Rep. 255.) The ground upon which the court below probably gave judgment for the defendant was, that they did not consider the suit to have been actually brought before the prisoner (MKellops)had returned to the limits. The writ, in this case, was actually *made out before the escape, and put into the hands of a third person, to be delivered to the coroner to be served, at such time as the prisoner should be found to have left the gaol liberties. It was, accordingly, carried to the coroner’s house, and left, in his absence, with his wife, during the time of his escape, and before the prisoner had returned; and there can be no question that this is, to all essential purposes, to be deemed the commencement of the action. If the coroner had personally received the writ, before the prisoner returned, there could be no doubt the sheriff would be liable. The delivery of the writ to his wife, at the usual place of his abode, is equivalent to a personal delivery, and such a commencement of the action as would save a debt from being barred by the statute of limitations. The writ, in this case, was placed where it might have been executed, and some efficient act done under it. (Van Vechten v. Paddock, 12 Johns, Rep. 181 .) The suing out of the writ has been held, in several cases, by this court, to be the commencement of the suit, and, although there may be some uncertainty, or ambiguity in the term “ suing out the writ,” yet there can be no doubt, that the delivery of the writ to the proper officer, or leaving it at his house, as in this case, for the purpose of being executed, is to be deemed the actual commencement of the suit. ( 3 Johns. Cas. 145 . 1 Caines, 69. 2 Johns. Rep. 342 . 3 Johns. Rep. 42 . 3 Caines, 133.)
Judgment reversed.[2]
(a) (a) Vide Low v. Little, post, note (a).
(b) (b) An action against the sheriff, for the escape of a prisoner in execution from the liberties 'of the gaol, is not well commenced by handing a writ to si person with directions to go and see the prisoner off the limits, and then to deliver the writ to the coroner. The writ must be either actually delivered to the coroner, or left at his office, Or be issued and sent to him, with the absolute, positive and unequivocal intention to commence the suit, while the prisoner is off the limits ; and to support the action for an escape, the fact of the prisoner being off the limits, must be affirmatively, and satisfactorily shown, by direct and positive proof. Nothing will be intended or inferred, unless it be plain and irresistible, to charge the sheriff. Visscher v. Gansevort 18 Johns. Rep 496 .