Legal Opinion

Appleby v. Clark

Massachusetts Supreme Judicial Court

Decided May 15, 1813PublishedCited by 9 opinions

Debt upon a judgment of the Court of Common Pleas for this county, September term, 1807. The defendant pleaded, 1. Nul tiel record, on which issue was joined to the Court. — 2. In bar, that the plaintiff sued out his execution upon the said judgment, and delivered the same to one Joshua Trafton, a deputy sheriff of this county, by whom he was arrested and taken into custody in virtue of said execution; and the said deputy sheriff, there afterwards on the same day of the…

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Debt upon a judgment of the Court of Common Pleas for this county, September term, 1807. The defendant pleaded, 1. Nul tiel record, on which issue was joined to the Court. — 2. In bar, that the plaintiff sued out his execution upon the said judgment, and delivered the same to one Joshua Trafton, a deputy sheriff of this county, by whom he was arrested and taken into custody in virtue of said execution; and the said deputy sheriff, there afterwards on the same day of the arrest, voluntarily permitted him to escape, and discharged him from said arrest. To this plea there was a general demurrer…

1Opinion of the Court

Per Curiam.'

It has been long settled, that a voluntary escape of a party in execution leaves the sheriff committing the escape without remedy. The prisoner is not to be retaken by the same officer; and if he suffers in damages recovered against him by the creditor, the original debtor is not hablé to the officer, as he is in case of a negligent escape, in which he is a wrong-doer as to the officer.

But neither a negligent nor a voluntary escape, unless the cred-*73¡tor has himself consented to the discharge of his debtor, when arrested and a prisoner in execution, is an answer for him to the…

2Cases cited3 opinions

  1. Green v. BurkeNew York Supreme Court · 1840
  2. Commonwealth v. DrewMassachusetts Supreme Judicial Court · 1808
  3. Brown v. GetchellMassachusetts Supreme Judicial Court · 1814

3Cited by9 opinions

  1. Brown v. GetchellMassachusetts Supreme Judicial Court · 1814
  2. Hamilton v. FowlkesSupreme Court of Arkansas · 1855
  3. Steele v. MurrayIndiana Supreme Court · 1822
  4. In Re McManamanSupreme Court of Rhode Island · 1888
  5. Coburn v. PalmerMassachusetts Supreme Judicial Court · 1852

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