Ray v. Hogeboom
New York Supreme Court
IN ERROR, on certiorari, from a justice’s court. Hogeboom sued Ray, who was a constable, and the other defendants, who were his sureties, for the escape of one Tracer, on an execution. It appeared that Ray took Tracer on an execution, at the suit of Hogeboom, and delivered him over to another constable to convey to jail; but neglected to deliver over the execution, whereby Tracer was discharged.
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IN ERROR, on certiorari, from a justice’s court. Hogeboom sued Ray, who was a constable, and the other defendants, who were his sureties, for the escape of one Tracer, on an execution. It appeared that Ray took Tracer on an execution, at the suit of Hogeboom, and delivered him over to another constable to convey to jail; but neglected to deliver over the execution, whereby Tracer was discharged. It was admitted, or proved, that when Tracer was taken, he was a soldier in the army of the United States, and that the execution was under twenty dollars. Hogeboom obtained judgment before the…
1Opinion of the CourtSpencer, J.
The judgment must be reversed. The constable was not bound to notice the fact, that Tracer was protected from arrest; but if he chooses to notice it, or neglects to take a person privileged from, arrest, and can show that he is so privileged, it is a good defence in an action against him. No wrong or injury has feeesa *434done to Hogeboom. He had no right to arrest the body of Tracer; and having no right to do so, he cannot found any action on the neglect to execute his writ.
Judgment reversed.
2Cited by9 opinions
- Goodwin v. . GriffisNew York Court of Appeals · 1882
- Wilckens v. WilletNew York Court of Appeals · 1864
- Carpentier v. WilletNew York Court of Appeals · 1864
- Ginochio v. OrserNew York Court of Common Pleas · 1855
- Hubbard v. SanbornSuperior Court of New Hampshire · 1822
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