Carpenter v. Willett — 31 N.Y. 90

Majority

p. 90

James S. Carpenter v. James C. Willett, &c.

Headnote

An action against the sheriff for an escape cannot he supported, where the process by virtue of which the arrest was made is void.

To authorize a justice of the District Courts in the city of New York to adjudge a party subject to arrest under a judgment against him, the right to arrest must be stated in the judgment, and must form a part of the same.

This was an appeal from a judgment of the Superior Court of the city of Yew York, and was decided in this court at the December Term, 1864.

The opinion was given by Wright, J. A party had been arrested on an execution issued out of the third District Court of the city of Yew York. The judgment on which the execution issued did not state that the defendant was subject to arrest and imprisonment therein. The law (1857, ch. 344) provides that “ when a judgment is rendered in a case where the defendant is subject to arrest and imprisonment therein, it must be so stated in the judgment and entered on the docket.” The court held the execution to be void,' for the reason stated in the head-note.

This case is reported in 28 How., 225 .