Richards v. Porter — 7 Johns. 137

Majority

p. 137

Richards and others against Porter, Sheriff, &c.

NEW-YORK,

Nov. 1810.

Headnote

In FebPitaPitf 1807, a sheriff arrested, a person on a capias adrespo returnable in term following, and the defendant was detained in custody* until jMarch, 1807, when a new sheriff being appointed, the prisoner was assigned over by the old to the new sheriff; the writ, however, was returned, by the old sheriff) cepi corpv.e 12 cuetocha, Soor~ alter the assignment of the prisoner, the new sheriff discharged him on his giving a bail-bond. The plaintiff had knowledge of the taking of the bail-bond ; but proceeded to judgment, and took out a ea. set. which being returned non est inv, be brought au action against the new sheriff for an escape? and it was held, that as the new sheriff was bound io discharge the prisoner at any lime before the return of the capias ad resp. on. his tendering sufficient bail, he was not liable for au escape.

The old sheriff had no right to return the writ, after he was out of office, but should have delivered it to the new sheriff) with the assignment of the prisoner, so that the new sheriff might return it with his endorsement of the discharge of the defendant on bail, by which the plaintiff would have known the situation of the defendant. The new sheiiff was not bound to give notice to the plaintiff, of his having let the defend mt to bail.

Whether the new sheriff would be responsible in such a case, without a delivery of the writ to him. by the old sheriff) quere?

THIS was an action of trespass on the case, against the late sheriff of Saratoga county, for the escape of one Philip Rykert, who was in custody of the defendant, on mesne process, at the suit of the plaintiffs. The cause was tried at the Saratoga circuit, in May, 1810, before Mr. Justice Van Ness.

In February, 1807, Daniel Bull, then sheriff of Sara-toga county, arrested Rykert, on a capias ad respondendum, at the suit of the plaintiffs, returnable in May term, 1807. Rykert was detained in custody by Bull, by virtue of the writ, until March, 1807, when Bull was removed from the office of sheriff, and Porter, the defendant, appointed in his stead. The writ was returned

p. 138

“ cepi corpus in custodia,” by Bull; and Rykert was, duly assigned, with other prisoners, by Bull to Porter. "The assignment was made about the 1st of March, 1807. 0 e e About a fortnight after receiving the assignment of Ry- the defendant, as sheriff of Saratoga, took a bail-bond in his own name, from Rykert and another, which he deemed sufficient security, and let Rykert go at large, without the knowledge or consent of the plaintiffs, in that action, and without giving them any notice thereof. ;

The plaintiffs, in that action, proceeded against Rykert, and recovered a judgment against him in August term, 1808, for 354 dollars and 68 cents, damages; upon which a test, ca. sa. was issued, returnable in August term, 1808; and was returned “ non est," by Bull, who was then sheriff of the county; having been reappointed to that office, on the removal of the defendant.

It was proved, that Rykert was insolvent.

The jury, by the direction of the judge, found a verdict for the plaintiffs, for six cents damages, and six cents costs, with leave for the plaintiffs to move for a new trial, on the above facts.

The cause was submitted to the court, without argu.ment.

The prisoner Rykert was entitled to his discharge from prison, at any time before the return day of the writ, on giving a bail-bond, with .competent bail; and the defendant, as sheriff, was bound to let him go, on receiving such a bond. (Laws of N. Y. vol. 1. p. 210.) Though the prisoner was turned over to the defendant by the former sheriff, that assignment could not affect his right to be discharged on bail. The defendant was not bound to give notice to the plaintiff of the apt of taking a bail-bond, in any other way than by ah endorsement upon the writ, and that was not delivered to him. The irregularity was in the old sheriff, in not handing

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over the writ along with the assignment of the prisoner. He had no authority to return the writ after he was out of office. He should have delivered it to his successor, and the successor would or ought to have returned the writ into court, with the former sheriff’s return thereon, and his own endorsement, stating the fact of having let the prisoner to bail. (2 Roll. Abr. 457. C. 1 Bulst. 70. Dalton, 516. 4 East, 604.) This would have been the regular course, and then the plaintiffs would have had due notice of the condition of the party. It is to be presumed from the case, that the writ was specified in the indenture of assignment, as without such notice ; at least, the defendant would not have been bound to take or detain the prisoner. (Dalton, 15, 16. 3 Co. 71.) Whether he was responsible for. the prisoner, without delivery of the writ, might also be a question; but that is not an essential point in this case; for, if it be admitted that the defendant was responsible, he did no more than his duty in letting the prisoner to bail, and was only bound afterwards to see that special bail was entered. As no bail was put in, the plaintiff proceeded to a judgment under a mistake, and the judgment was erroneous. The defendant was not answerable at all for an escape, for there was none while he had charge of the prisoner. As, however, nominal damages only are recovered, the defendant, makes no objection to the verdict ; and the motion on the part of the plaintiff to set it aside, ought to be denied.

Motion denied.