Visscher v. Gansevoort — 18 Johns. 496

Majority

p. 496

Visscher against Gansevoort, Sheriff.

Headnote

An action Sir'for tinges- cape, of a prisoner in execution from the liberties of the gaol, is not well handtagTwrrt with3directions theSprisonei-Soff Sen to deliver the writ to the coroner.

The writ must be either actually delivered to the co roner, or left at Usuedand°sent abSte^pori-qufvocaUn'tention to com-menee the suit, while the prisoner is on the limits.

To support the action for factof tííe pri-thelimits'of’ihe gaoij"must” lbe and'msatlsfacto-riiy shown, by direct and positive proof. No-thingwillbein-tended orinfer-

THIS was an action against the defendant, as sheriff of ^3e county °f Albany, for the escape of Thomas Mounsey, a prisoner, in execution, from the liberties of the gaol, tried 4 , ° at tlie Albany circuit, iu April* 1820. before Mr. Justice TTT 7 _ ° T . , Woodworth. It was proved, that on the 26th of June, 1819, the attorney of the plaintiff, hearing that M. was off the limits °f the gaol, delivered a writ against the defendant, to the witness, Ackerman, with instructions ic to go and see M. off ga°l liberties, so that he could swear to the fact, and then deliver the writ to the coroner.” The evidence given # © as to the fact of MJs being off the limits, at the time the . ° writ was delivered to the coroner, was not perfectly clear.

C. White, for the plaintiff He cited 1 Caines* Rep. 7°- 2 Johns. Rep. 342 . 3 Johns. Rep. 43 . 15 Johns. Rep: 326. 17 Johns. Rep. 63 . Burdick v. Green, (ante, 14.)

Root, contra.

, . ... 1 he only question in this case is, whether, the suit was commenced when Mounsey, for whose escape the defendant is sued, was off the gaol limits..

^ was decided, in Burdick v. Green, that if a writ was actua^y made out, and sent to the sheriff or his deputy, by mail or otherwise, with a bona fide and absolute intention of 7 ° having it served, it would be a good commencement of the . ° ... suit; but, we held, that such intention must be positive and unequivocal. Here the writ was made out, and delivered to a messenger, as we construe the facts, conditionally; that is, he was directed to go and see Mounsey off the limits, and then deliver the writ to the coroner; but, if he went, and did not see him off the limits, or if he saw him on the limits, then, it is implied, that he was not to deliver the writ to the coroner. When, therefore, the attorney issued the writ, the intention to commence the suit was not absolute, po

p. 497

sitive, and unequivocal; and we cannot admit, that the messenger or bearer of the writ, shall have it in his power to decide whether the suit shall be commenced, by any event subsequent to the delivery of the writ to him, short of its being actually put into the hands, or left at the office of the coroner.

The evidence is not very satisfactory whether Mounsey was on the limits, or not, when the writ was, in point of fact, received by the coroner. We rather infer, that he was then on the limits; but the plaintiff should have shown, affirmatively, that he was then off the limits. For, in such an action, we cannot intend, or infer any thing, unless it be plain and irresistible, to charge the sheriff.

Judgment for the defendant.