Cantillon v. Graves — 8 Johns. 472

Majority

p. 472

Cantillon, Administrator, &c. against Graves, Sheriff, &c.

Headnote

In an action^ of sheriff, for the prisoner in hit eiithmf lit The tiff tiTTiefendan( pleaded, that her, 1810, (h <-stheTvii! If*the tha^heiTturned the* commence6plaintiff's suit and continued in gaol until tiic 6th October, i8io, sented his *pecourt oi common wTTikchargcd out of custody on the said execution, by order of the court of common pleas, er and authority purJlmiTto'the ofdeltmV’íwi respect to the ¿hdr persoml (sess. 24. c. t>6.) it was held, on rer*61 Tiat'Th¿ cient "to show that the court of common pleas had jurisdiction in the case, and that the discharge was a sufficient justification to the sheriff, who has no concern with the regularity of the proceedings before the court.

THIS was an action of debt, for the escape of one Green, in the custody of the defendant, as sheriff of the county of Clinton, on a ca. sa. issued against Green, at the suit of the plaintiff. The defendant pleaded that Green, on the 1st of October, 1810, broke the gaol, and escaped, against the will of the defendant; and after-wards, on the same day, and before the exhibiting the bill of the plaintiff, voluntarily returned into the gaol, and into the custody of the defendant, and continued in prison, in his custody, until the 6th day of October, 1810, when Green presented his petition to the court of common pleas of the county of Clinton, with an invenr , . ... . , tory, &c. praying that an assignment or his estate might be made, that he be discharged from his imprisonment on the said execution, and that the said court of common pleas, then and there, having full power and authority for the purpose, did order and assign a time for the said r r ’ ° Green to be heard on his petition, according to the direc- . . , non of the act for the relief or debtors, with respect to the imprisonment of their persons, to wit, the 6th Octoher, 1810; and the said Green being brought into court, an(l having taken the oath prescribed in the said act, and the said court being satisfied that the proceedings, on the part of the said Green, were just and fair, did order . , „ ., , . , his estate, &c, to be assigned, <kc.; and the said assignment being then and there made by the said Green, <kc. t^le sa^ court having full power and authority for that pUrp0se order the said Green to be discharged from r r 7 # ° his imprisonment on the said execution, ike.; and that

p. 473

ihe defendant being served with a copy of the order, ° ... discharged the said Green, &c. and that this is the same escape whereof the plaintiff complains, &c. wherefore, &C,

To this plea there was a general demurrer, which was submitted to the court without argument.

The plea, even if it be defective in matter of form, (and in that view we have not examined it,) is good in substance, upon general demurrer. It is the-same as the second plea in the case of Currie & Whitney v. Henry. (2 Johns. Sep. 433.) It states enough to show that the court of common pleas had jurisdiction in the case" of the prisoner, and their discharge was a justification to the defendant, as sheriff. He had no concern with the regularity of the proceedings be^re the court. It was enough that the prisoner charged in execution for the sum mentioned, presented a petition and inventory to the court, and prayed that he might be discharged from imprisonment in that case, and that the court did take cognisance of the petition, according to the directions of the statute named, and that they had authority for that purpose, and that the prisoner was discharged, &c.

Judgment for defendant*