Powers v. Wilson
New York Supreme Court
On demurrer to the defendant’s 3d and 4th pleas. The declaration was in debt for the escape of one Woodward from the gaol of Clinton county, where he was in the defendant’s custody on a ca. sa. upon a j udgment of this court at the suit of the plaintiff.
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On demurrer to the defendant’s 3d and 4th pleas. The declaration was in debt for the escape of one Woodward from the gaol of Clinton county, where he was in the defendant’s custody on a ca. sa. upon a j udgment of this court at the suit of the plaintiff. The escape was laid on the 9th of September, 1826; and the memorandum was of October term, 1826. The defendant pleaded, 3dly, that the prisoner, on the 14th of April, 1826, privately, and without the knowledge •of the defendant, escaped, &c. That the plaintiff, after-wards, on the same day, and before the commencement of this suit, at, &c.,…
1Opinion of the Court
Curia, per Sutherland, J.
There is no doubt, that if a defendant in execution escape from the limits, without the assent of the creditor, and he subsequently assents to the escape, and agrees that he may remain off, yet the subsequent assent will not make it an escape with the consent of the plaintiff; and he may either retake the party, or have his remedy against the sheriff for the escape. The right of action having once accrued, nothing but a release, or an agreement, for a valuable consideration, can defeat it. (Scott v. Peacock, 1 Salk. 271; Sweet v. Palmer, 16 John. 183.)
It is equally…
2Cases cited2 opinions
- Yates v. Van Rensselaer & SchemerhonNew York Supreme Court · 1810
- Minton v. WoodworthNew York Supreme Court · 1814
3Cited by3 opinions
- Servis v. MarshU.S. Circuit Court for the Northern District of Illnois · 1889
- Richardson v. RittenhouseSupreme Court of New Jersey · 1878
- Vidrard v. FradneburgNew York Supreme Court · 1877