Fairchild v. Case
New York Supreme Court
This was an action on the case tried at the Oswego circuit, in June, 1839, before the Hon. Philo Gridley, one of the circuit judges. The plaintiffs declared for the voluntary escape of one Gerlack, from confinement in the jail of Oswego, on an arrest in an action of assumpsit, at the suit of the plaintiffs by virtue of a capias ad respondendum. The plaintiffs proved the capias with a return by the defendant of cepi corpus in custodia.
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This was an action on the case tried at the Oswego circuit, in June, 1839, before the Hon. Philo Gridley, one of the circuit judges. The plaintiffs declared for the voluntary escape of one Gerlack, from confinement in the jail of Oswego, on an arrest in an action of assumpsit, at the suit of the plaintiffs by virtue of a capias ad respondendum. The plaintiffs proved the capias with a return by the defendant of cepi corpus in custodia. They also produced an exemplification of the judgment against Gerlack, from which it appeared that the ’’plaintiffs [ *382 ] in the action against him, declared…
1Opinion of the Court
By the Court,
Cowen, J.
1. All the questions of fact in this case, properly belonging to the jury, were submitted to and disposed of by them; and among these was the question of Gerlack’s non-residence and consequent liability to arrest and imprisonment.
2. If the form of declaring had entitled Gerlack to a discharge, he alone could take advantage of the slip—not the sheriff.
3. The statute concerning venues, and for more easy pleading in certain suits, 2 R. S. 277, 2d ed. § 28, 29, is in terms confined to acts [ *383 ] done by officers viriute officii; and *does not extend to mere nonfeasance, such…
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