Carpentier v. Willet
New York Court of Appeals
The action was for the escape of one Doughty, who was committed to the custody of the late James C. Willett, sh eriff" of New York, under an execution issuing out of the third district court of the city. On the trial it appeared, that on the 12th November, 1857, the plaintiff recovered judgment against Samuel H. Doughty for §267.50, in the third district court of the city of New York.
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The action was for the escape of one Doughty, who was committed to the custody of the late James C. Willett, sh eriff" of New York, under an execution issuing out of the third district court of the city. On the trial it appeared, that on the 12th November, 1857, the plaintiff recovered judgment against Samuel H. Doughty for §267.50, in the third district court of the city of New York. The plaintiff sued as the assignee of one Thomas France, and stated the following cause of action: On the 2d Way, 1857, Doughty held a judgment against Alfred S. Bates and Thomas France, amounting on that day to…
1Opinion of the CourtWeight, J.
If the process by virtue of which Doughty was * arrested and imprisoned was void, an action for his escape could not be supported. That the process is Amid is a defense to the sheriff, upon the principle that having no right to detain the defendant, the creditor has lost nothing by the escape. (Phelps v. Barton, 13 Wend., 18; Horton v. Hendershot, 1 Hill, 118; Albro v. Ward, 8 Mass., 79; Constant v. Chapman, 2 Queen’s Bench, 771.) The question, therefore, is, was the execution by which Doughty was taken issued with or without authority ? If unauthorized he was not legally in custody, and the…
2Cases cited14 opinions
- Savacool v. BoughtonNew York Supreme Court · 1830
- People v. AllenNew York Supreme Court · 1831
- Pond v. NegusMassachusetts Supreme Judicial Court · 1807
- Chegaray v. . JenkinsNew York Court of Appeals · 1851
- Sibley v. HowardNew York Supreme Court · 1846
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3Cited by1 opinion
- Goodwin v. . GriffisNew York Court of Appeals · 1882