Morrison v. Penniman — 10 Wend. 573

Majority

p. 573

Morrison vs. Penniman.

Headnote

A capias, directed to the sheriff of one county, but not delivered, is not functus officio ; its direction may be altered, and then it may be delivered to the sheriff of another county.

The defendant moved to set aside the capias, on the ground that it had been used previous to its delivery to the sheriff who served it; on its face it was apparent that it had been directed to the sheriff of another county. In opposition, it was shewn that although the writ was made out and directed to the sheriff of another county, it had not been delivered to him or any of his deputies; that it remained in the hands of the plaintiff’s agents until delivered to the sheriff who served it; and that, previous to its delivery, its direction was altered.

By the Court,

The writ was not functus officio; although originally directed to the sheriff of another county, it was not delivered to him, and was never available process until put into the hands of the officer who served it. The test in these cases is, has the clerk been defrauded of his fees l This cannot be pretended here. The writ never was used so as to defraud the clerk. The motion is denied.